Supreme Court: Handshake requirement was not necessary and constituted indirect discrimination
Can an employer require employees and interns to shake hands with everyone regardless of sex? The Supreme Court addressed this question in a ruling concerning a student teacher whose internship was terminated because she did not shake hands with adults of the opposite sex for religious reasons.
A Brief Outline of the Case
In the spring of 2019, a female student teacher was going on a six-week internship at a primary school. At a welcome meeting, she shook hands with the female teachers, but when a male teacher extended his hand, she did not take it. Instead, she placed her hand on her heart and bowed her head. The student is Muslim and explained that for religious reasons, she does not shake hands with strangers of the opposite sex.
The school subsequently summoned her to a meeting and demanded that she shake hands with everyone, regardless of sex. When she refused to comply with this requirement, the school terminated her internship with immediate effect. The student lodged a complaint with the Equal Treatment Board, and the case ended up in the Supreme Court.
The Equal Treatment Act
The Equal Treatment Act prohibits discrimination in the labour market on the basis of, among other things, religion or belief. Discrimination can occur in two ways: Direct discrimination occurs when a person is treated less favourably because of one of the law’s protected criteria, such as religion. Indirect discrimination occurs when an apparently neutral rule in practice affects a particular group more severely because of such a criterion.
A requirement to shake hands would seem neutral on the surface, as it applies to everyone. However, it can particularly affect people whose faith prohibits physical contact with adults of the opposite sex. In this case, there was therefore a question of possible indirect discrimination.
Indirect discrimination is not necessarily unlawful. A claim is lawful if it pursues a legitimate aim and is both appropriate and necessary. In this case, the parties agreed that the requirement for handshakes pursued a legitimate aim, namely, to ensure equal treatment between the sexes, and that it was an appropriate means. The dispute concerned solely whether the claim was also necessary.
The Equal Treatment Act contains a rule on shared burden of proof. Because the student could point to circumstances that gave reason to suspect that she had been discriminated against, the burden of proof shifted so that it was the municipality that had to prove that the principle of equal treatment had not been violated. In practice, this meant that it was the municipality that had to demonstrate the necessity of the handshake requirement, and not the student who had to prove the opposite.
The Supreme Court’s ruling of 13 May 2026
The case was decided by dissent, with six out of seven judges finding that the municipality had not demonstrated that a requirement to shake hands for everyone, regardless of sex, was necessary to ensure equal treatment. The dissenting judge, by contrast, found that the requirement for handshakes was necessary to ensure equal treatment, and that the school was therefore entitled to terminate the internship.
According to the Equal Treatment Act’s principle of proportionality, such an assessment requires that the employer to a reasonable extent investigates less intrusive alternatives. In this connection, the Supreme Court emphasised that the school itself had raised the issue of the manner of greeting, and that it had therefore been natural to enter into a dialogue with the student about possible solutions.
The majority found that the school had not sufficiently attempted to explore such alternatives, for example an alternative respectful way of greeting that could reconcile the consideration of equal treatment with the student’s religion or belief. Moreover, no specific problems had been identified at the school in question that could justify rejecting alternative solutions, so long as they continued to ensure neutral and equal treatment. In the majority’s view, the fact that such a solution would entail a compromise between different considerations could not in itself justify rejecting it.
On this basis, the majority found that the termination of the internship constituted indirect discrimination in violation of the Equal Treatment Act.
The student was not awarded compensation, as the Supreme Court emphasised that she herself could have contributed more to finding a solution, and that the termination of the internship had limited practical consequences for her. Since her claim concerned payment of compensation, the municipality was acquitted, and the High Court’s ruling was upheld.
Significance for employers
The ruling shows that the duty to find a solution does not lie solely with the employer. The employee is also expected to contribute actively and constructively to the dialogue.
The decision is not only significant for schools and educational institutions; It illustrates that a requirement can constitute indirect discrimination, even if it applies equally to everyone, if it in practice affects a certain group more than others. At the same time, the Supreme Court establishes that it is not sufficient that a requirement has a legitimate aim, appears appropriate, or stems from the employer’s general values.
The employer must be able to demonstrate that the specific requirement was necessary in order to be able to perform the work and that the aim could not be achieved by less intrusive means. This means that the employer must, to a reasonable extent, have explored possible alternatives together with the employee, and that a relevant alternative can only be rejected if there are concrete and real circumstances that make it necessary.
Cases concerning discrimination thus place high demands on both the employer’s procedure and the documentation showing that a requirement is actually necessary.
