Legally compliant background checks under the Swedish Discrimination Act

Grounds protected under the Swedish Discrimination Act

The Swedish Discrimination Act prohibits discrimination in working life, including during recruitment and employment processes. This means that employers may not disadvantage job applicants or employees based on any of the seven protected discrimination grounds.

To create legally compliant background checks and recruitment processes, it is therefore important for employers to understand which discrimination grounds are protected under Swedish law and how information related to them should be handled. The seven discrimination grounds are:

1. Gender
2. Gender identity or gender expression
3. Ethnicity
4. Religion or other belief
5. Disability
6. Sexual orientation
7. Age

Discrimination in the recruitment process

Research compiled by the Swedish Equality Ombudsman (DO) shows that discrimination still occurs in Swedish recruitment processes.

• Job applicants with what researchers describe as Arabic-sounding names receive fewer positive responses and are invited to fewer interviews than candidates with names perceived as Nordic, European or North American.
• The risk of discrimination may also increase depending on the area where the applicant lives, so-called neighbourhood effects. Research shows that this particularly affects people with foreign backgrounds living in socioeconomically disadvantaged areas.
• The likelihood of being invited to an interview decreases already after the age of 40.
• People with disabilities risk being excluded due to stereotypical assumptions about work capacity or customer preferences.

A recurring conclusion in the research is that discrimination rarely stems from explicit decisions or deliberate actions. Instead, the risks often arise through subjective assessments, stereotypical assumptions and processes where irrelevant factors influence how candidates are perceived and evaluated.

Indirect discrimination. Direct consequences.

The Swedish Discrimination Act covers both direct and indirect discrimination. Direct discrimination means that someone is treated less favourably based on a protected discrimination ground, while indirect discrimination can occur when a criterion or way of working appears neutral but in practice disadvantages certain groups.

In the context of background checks, the risks often relate to indirect discrimination. A screening process may be designed to treat all candidates equally, while still having greater consequences for individuals based on factors such as ethnicity, disability or age.

This does not automatically mean that the background check is discriminatory. Employers may, in some cases, have a legitimate purpose for conducting certain checks, particularly in roles with high security and trust requirements. However, the process must also be proportionate, relevant to the role and limited to information necessary for the specific risk assessment.

Information about criminal offences requires legally compliant and proportionate processes

Although previous criminal offences are not a protected discrimination ground under the Swedish Discrimination Act, they are considered sensitive personal data subject to strong protection under the GDPR. This places high demands on how criminal record information is collected, processed and used in recruitment processes.

Background checks involving criminal record information may be justified for certain roles with high security and trust requirements. To ensure legally compliant processes, employers need to make sure that the screening is relevant to the role and limited to information necessary for the specific risk assessment.

The issue has become increasingly relevant following the Swedish Supreme Court’s decision regarding legal databases. In practice, the ruling means that companies can no longer freely search and collect information about criminal offences from legal databases in the same way as before. This has highlighted the importance of proportionate processes and ensuring that employers only access information that is relevant and justified for the role.

Social media screening in recruitment

A quick online search of a candidate may feel like a natural part of the recruitment process. However, after only a few searches, employers may gain access to information that is not actually relevant to the role. A photo with a partner may reveal sexual orientation, a post from a religious holiday may indicate religion or beliefs, and family photos may reveal pregnancy or family circumstances. Information about health, political views or ethnic background may also become visible through social media or other open sources.

The issue is rarely intentional discrimination by employers. Instead, employers are often indirectly influenced by the information they are exposed to. The more unstructured the online searches or social media screening processes are, the greater the risk that irrelevant personal information may unconsciously influence the assessment of a candidate. Employers should therefore have clear guidelines for when and how online searches are used in recruitment processes and ensure that the checks are relevant, proportionate and consistent.

Social media screening without unnecessary data collection

Through DISA’s social media and online screening services, employers avoid collecting information that may be irrelevant to the role or constitute protected personal data. Employers are only informed about relevant findings that may represent a risk in relation to the specific role or assignment.

Discover DISA’s internet scan and social media check

Background checks in a changing security landscape

As security requirements and geopolitical tensions continue to rise, more employers are carrying out enhanced background checks for roles linked to international operations, foreign interests or security-sensitive activities.

At the same time, this development raises difficult questions around proportionality and discrimination. How can employers protect their organisations without creating risks of unfair treatment based on nationality, ethnicity or background? This balancing act is becoming increasingly important as security concerns move closer to the workplace.

Increased security requirements should not lead to:

• certain nationalities automatically being viewed as security risks
• individuals with international backgrounds being subjected to greater scrutiny
• security measures drifting into stereotypical assumptions

Practical guidance for employers

Always assess the role – not the individual

Background checks should be linked to:

• job responsibilities
• security level
• access to sensitive information
• regulatory requirements

Not to the candidate’s:

• nationality
• name
• background
• origin

Learn more about role-based background checks

Apply the same process to all candidates

Different levels of background screening for different candidates can create significant discrimination risks, particularly when assessments become subjective or lack clear documentation. If some candidates are screened more extensively than others without objective justification, the risk of unfair treatment increases.

Employers should therefore work with a clear and consistent screening policy where the same type of role always follows the same process. This creates:

• greater legal certainty
• more transparent recruitment processes
• better compliance with GDPR and discrimination legislation
• reduced risk of arbitrary assessments

A documented process also makes it easier to justify why a specific check is carried out and how it relates to the actual level of risk and responsibility associated with the role.

How to create a clear and legally compliant screening policy

Want to learn how to build a clear and proportionate screening policy in practice? Our white paper outlines what employers should consider when creating fair, consistent and compliance-focused background screening processes.

Build a clearer screening process

More information does not always mean better information

Many employers assume that having access to more information automatically leads to safer recruitment decisions. In practice, extensive online searches or unstructured background checks can make it harder to make objective assessments. The more irrelevant information that is collected, the greater the risk that decisions are influenced by “gut feeling” or information unrelated to the role.

Documentation creates more reliable processes

A clearly documented process helps employers ensure that background checks are carried out consistently and objectively. It also makes it easier to explain:

• why a particular check is being conducted
• which risk the check is intended to address
• how the information is used
• why the screening is proportionate

This strengthens both legal certainty and trust in the recruitment process.

Inform the candidate

Informing candidates that background checks will be carried out does not have to be complicated. In fact, many candidates today expect some level of screening, particularly for roles involving security, trust or access to sensitive information. Being transparent early in the recruitment process helps create clearer expectations and strengthens trust in the process.

Frequently asked questions about background checks and discrimination