Municipality discriminated against intern over handshake requirement

In a new principled ruling dated May 13, the Danish Supreme Court has assessed whether a public primary and lower secondary school could terminate a teaching internship with a student teacher who, for religious reasons, did not wish to shake hands with men. The Supreme Court ruled that the intern had been subjected to indirect discrimination on grounds of religion, but that, based on the circumstances of the case, there were no grounds for awarding compensation.

The case arose after a student teacher, during a welcome meeting, greeted the female teachers with a handshake, but when she was to greet a male teacher, she placed her right hand over her heart and nodded. The student teacher referred to her religious beliefs as grounds for the different greetings. The school then required her to shake hands with all persons, regardless of gender, as a requirement in order to continue the internship. As she did not wish to comply with the requirement, the internship was terminated.

The majority of the Eastern High Court found that the handshake requirement was necessary to ensure equal treatment between the genders, and the municipality was therefore acquitted. The High Court minority reached the opposite conclusion and stated that the municipality had not, through a specific proportionality assessment, proven that the handshake requirement was necessary. The majority of the Supreme Court endorsed this view and thus ruled in accordance with the Eastern High Court minority.

Municipality had subjected intern to indirect discrimination 

The Supreme Court initially held that the intern had established facts giving rise to a presumption that she had been subjected to indirect discrimination on grounds of religion. It was then up to the municipality to prove that the handshake requirement was objectively justified by a legitimate purpose, and that the requirement was appropriate and necessary.

It was undisputed in the case that the purpose of the handshake requirement was to ensure equal treatment between the genders, and that this purpose was legitimate. The central question was therefore whether the handshake requirement was necessary.

The majority of the Supreme Court emphasized that the school had not sufficiently investigated whether less intrusive alternatives to handshakes could be found that would both accommodate the consideration of equal treatment between the genders and the intern’s religious beliefs. Among other things, the court’s majority emphasized that the intern had stated that she had not previously experienced problems with her manner of greeting in similar positions, and that the school had not genuinely attempted to explore other respectful forms of greetings.

On that basis, the Supreme Court ruled that the municipality had not proven that it was necessary to require handshakes with everyone regardless of gender, and that the termination of the internship therefore constituted indirect discrimination in violation of the Danish Anti-Discrimination Act.

Although the Supreme Court found that indirect discrimination had occurred, the court’s majority found, based on an overall assessment of the circumstances, that there were no grounds for awarding compensation to the intern. Among other things, emphasis was placed on the fact that the intern herself could have contributed more to finding a solution, and that the termination of the internship had limited practical consequences for her.

Littler notes 

The Supreme Court established that employers and educational institutions may, in certain cases, be required to investigate whether a legitimate aim can be achieved through less intrusive measures before decisions are made that may involve indirect discrimination on grounds of religion.

At the same time, the ruling illustrates the difficult balancing exercise between the consideration of freedom of religion and the duty of public authorities to ensure equal treatment and neutrality.

Finally, the ruling can be seen as an expression that a methodical and relatively thorough review of the employer’s proportionality assessment must be carried out in cases where employees’ religiously motivated conduct is restricted.

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Disclaimer: The above is not, and cannot replace, legal advice.