The Terms of Ethnoracial Equality
| Author | Leila Brännström |
| Date | 01 October 2018 |
| Published date | 01 October 2018 |
| DOI | 10.1177/0964663917722827 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2018, Vol. 27(5) 616–635
The Terms of Ethnoracial
ª The Author(s) 2017
Article reuse guidelines:
Equality: Swedish Courts’
sagepub.com/journals-permissions
DOI: 10.1177/0964663917722827
Reading of Ethnic Affiliation,
journals.sagepub.com/home/sls
Race and Culture
Leila Bra¨nnstro¨m
Lund University, Sweden
Abstract
This article initially accounts for the discussions concerning the notions ‘ethnic origin’
and ‘race’ that have taken place in the Swedish legislative context and places these within
a wider European context. Next follows a mapping of the ways in which Swedish courts,
in cases of alleged ethnic discrimination, read the notion of ‘ethnic affiliation’ – defined
as ‘national or ethnic origin, skin colour, or other similar circumstance’ – and decide
whether a statement or an act is related to it. The purpose, to borrow Michel Foucault’s
words, is to ‘make visible precisely what is visible’. By bringing together, arranging and
connecting what the courts have said about ‘ethnic affiliation’, the conclusions they have
reached and the circumstances that they have ignored, three observations are made: (a)
ethnic affiliation is treated as an authentic and stable personal individual attribute, (b)
ethnic affiliation is seen as a question about body types and bloodlines solely and (c)
discriminatory acts are connected to ‘ethnic affiliation’ only if related to visual appear-
ance or accompanied by ‘incriminating words’. The article discusses and analyzes the
significance and implications of these observations in engagement with theorists such as
Barnor Hesse and David Theo Goldberg.
Keywords
Barnor Hesse, culture, David Theo Goldberg, discrimination adjudication, ethnic dis-
crimination, ethnic origin, European critical race theory, race, Sweden
Corresponding author:
Leila Bra¨nnstro¨m, Department of Law, Lund University, Box 207, Lund 221 00, Sweden.
Email: Leila.Brannstrom@jur.lu.se
Bra¨nnstro¨m
617
Like many other European countries, questions concerning ethnoracial1 co-habitation
and justice take centre stage in Swedish social and political discussions today. The
background is not only the major changes in the ethnoracial make-up of the Swedish
population that have taken place in the past few decades but also the strong patterns of
socioeconomic inequality along ethnoracial lines. Although the image of Sweden as an
ethnoracially relatively homogeneous country lingers on in and outside the country, in
2016 more than 30%2 of the inhabitants of the country were either born abroad or had a
parent who was. Like most other continental European states, Sweden does not compile
official statistics on people’s ethnic origin, race or colour, but available information on
the inhabitants’, and their parents’, places of birth suggests that the country has, pro-
portionally speaking, one of Western Europe’s largest minorities of people of non-
Western origin.3 At the same time, in Sweden, being poor, lacking employment or
occupying unskilled and low-paying jobs and living in run-down and de facto segregated
areas strongly correlates to originating from outside the West.4
Against this backdrop it appears important to explore and analyse prevalent ideas
about what can and cannot constitute condemnable ethnoracial injustice and, at a more
basic level, when an act or a situation entails an ethnoracial aspect at all. Such investi-
gations can be carried out in many different arenas, but the judiciary appears as a
particularly interesting site to study because the courts reproduce ideas that are not only
influential but also officially sanctioned. A study of the judiciary along the lines just
mentioned is precisely the aim of this article. The objective, more specifically, is to map
the ways in which Swedish courts, during the more than two decades that it has been
possible to bring cases of alleged ethnic discrimination to them, have read ‘ethnic
affiliation’ (etnisk tillho¨righet) – defined as ‘national or ethnic origin, skin colour or
other similar circumstance’ in the current discrimination act – and have decided whether
a statement or an act is related to it. To borrow Michel Foucault’s words, the investiga-
tion will ‘make visible precisely what is visible’ (Foucault in Orford, 2012: 617) by
making the patterns and the underlying assumptions in the reasoning of the courts legible
and put into relief.
The set of rulings that constitute the empirical basis of this article consists of all the
decisions on cases of alleged ethnic discrimination made by Swedish courts ever since
the first juridically enforceable ban on ethnic discrimination was introduced in Sweden
in 1994 (through act 1994:134 later replaced by act 1999:130) and until the end of 2015.5
The Swedish Labor Court (hereafter SLC) has been the ultimate arbiter of all disputes
concerning ethnic discrimination in working life since the beginning. Ethnic discrimi-
nation came within the jurisdiction of the general courts when act 2001:1286 was
adopted in 2001, prohibiting, among other things, ethnic discrimination of students in
higher education. The scope of the prohibition on ethnic discrimination was extended to
areas such as healthcare, the provision of social services and the supply of goods,
services and housing in 2003 (act 2003:307) and to schools in 2006 (act 2006:67). The
current ‘umbrella’ discrimination act (2008:567) came into force on 1 January 2009,
replacing seven acts, including the four that previously had prohibited ethnic discrimi-
nation in different areas of social life.
However, before presenting the rulings of Swedish courts more in detail and proceed
to the analysis of them, this article will first draw attention to some of the intricacies that
618
Social & Legal Studies 27(5)
surround the notions of ‘ethnic origin’ and ‘race’ and account for the discussions about
them that have taken place in the Swedish legislative context. These notions and dis-
cussions will also be placed within a wider European context.
‘Race’ and ‘Ethnic Origin’ in the Swedish Context and
in European Perspective
In April 2012, the SLC delivered its verdict in the dispute between the Building Work-
ers’ Union and the construction company IPL (judgment no. 2012:27). The dispute
concerned the alleged ethnic discrimination of BO, a welder of Nigerian descent, who
had previously been employed by IPL. One incident, among several, that according to
the Union constituted ethnic discrimination was a conversation that had taken place
between BO and a consultant who performed supervisory functions in the company.
BO had recorded the conversation which disclosed the consultant saying: ‘you look like
a slow-motion movie when you’re walking around here’ and ‘maybe it’s because you are
black, but I think it depends on a cultural thing . . . not because of your color (English in
the original)’. The SLC argued that the first statement is not discriminatory at all because
it only criticizes BO for working or moving slowly. The beginning of the second sen-
tence, the court acknowledged, comes across as ‘inappropriate’ (ola¨mpligt) but does not
constitute ethnic discrimination because it ends with an unambiguous clarification that
the skin colour of BO was not an issue.
One of the questions that the court’s judgment of this incident raises is why a dis-
criminatory act would not constitute ethnic discrimination if it is related to someone’s
(assumed) cultural affiliation. Does ‘ethnic affiliation’ and its constitutive elements
(national or ethnic origin, skin colour and other similar circumstances) not include
cultural affiliation?
The terms ‘race’ (ras) and ‘ethnic origin’ (etnisk ursprung) were defined in Swedish
law in 1970 when two criminal law provisions were adopted in order to bring domestic
law into line with the obligations imposed by the International Convention on the
Elimination of All Forms of Racial Discrimination which was to be ratified the year
after. In the government bill,6 proposing the provisions ‘race’ was defined as
such groups of the human species that are usually included in anthropological classifications
of races, including ‘sub-races’ such as the ‘alpine race’. These are based on differences in
certain hereditary physical attributes such as pigmentation and the facial shape.7 (Govern-
ment Bill, 1970:87: 37–38)
Conversely, a group of the same ‘ethnic origin’ was defined as ‘a group of people, the
members of which share a relatively homogeneous cultural pattern’ (Government Bill,
1970:87: 37–38). ‘Italians’ and ‘Yugoslavs’ were mentioned as examples of ethnic
groups, while ‘the Sami people’ were cast as an ethnic group as well as a group marked
by skin colour (Government Bill, 1970:87: 37–38).
While the 1970 definition of ethnic origin has been referred to without any reserva-
tions in latter legislative processes (see e.g., Government Bill, 1993/94:101: 44), the
‘scientific falseness’ of ‘race’ has usually been emphasized when the term has been
Bra¨nnstro¨m
619
discussed in such processes after the mid-1970s (see e.g., Government Bill, 1975/76:209:
157). However, even if the Swedish parliament, government and a number of public
inquiries have repeatedly underlined that the human species cannot be clearly divided on
the basis of hereditary physical attributes, the meaning ascribed to the term ‘race’ is in
line with the 1970s definition: ‘Race’ refers to the (erroneous) idea that people can be
divided into groups based on their heritable physical traits (cf. e.g. Official Report of the
Swedish Government, 2003:39: 187–221).
...
To continue reading
Request your trial