Supreme Court ruling in the Danish Handshake Case

In the case, two female trainee teachers declined to shake hands with their male supervisor at a welcome meeting held at the start of their internship due to the fact that they were orthodox Muslims. The school principal afterwards held a meeting at which it was made clear that, in order to continue their placement, the trainees would be required to comply with the municipality's values on equal treatment, neutrality and professionalism, and that they would need to shake hands with all persons regardless of gender when the situation called for it. When the trainees categorically refused, the placement was terminated.

The matter was initially brought before the Board of Equal Treatment (Ligebehandlingsnævnet), which awarded compensation to the two trainee teachers for unlawful discrimination. The municipality disagreed with the decision, and the Board of Equal Treatment accordingly brought the case before the courts on behalf of the trainees. Given the case's matters of principle, it was referred to the Eastern High Court, which ruled in favor of the municipality.

Only one of the two trainees appealed the High Court's ruling to the Supreme Court. On the question of evidence, the Supreme Court found that it could not be established that the trainee teacher had indicated at the meeting that she was unable to have physical contact with boys who had reached puberty, as the municipality had submitted, but only that she refused to have physical contact with males over the age of 18. However, the Supreme Court noted that had she refused physical contact with male pupils, she would not have been able to fulfil the role of a teacher and therefore could not have continued as a trainee teacher.

The case was decided by a majority of six judges, with one judge dissenting. The majority of the Supreme Court found that the school should, to a reasonable extent, have explored together with the trainee teacher whether a procedure could be found for greeting colleagues and parents that was compatible both with the objective of equal treatment of the sexes and with the trainee teacher's religion or belief.

On the specific facts, the majority of the Supreme Court found in its reasoning that the school had not made a reasonable attempt to explore such alternatives and had therefore acted in breach of the Anti-Discrimination Act. However, the majority also found that the trainee teacher herself could have contributed more to finding a solution, and accordingly the municipality was acquitted of the claim for compensation.

The case raised the question of the extent to which employers and public authorities have a margin of appreciation in situations where a public official, on the basis of their religious convictions, subjects others to gender discrimination — regardless of intent. In other words a case of conflicting protected rights. 

The Supreme Court's judgment clarifies the legal position in such cases on certain points, but far from all of them. In particular, the Supreme Court does not address the relationship between EU law and the European Charter of Human Rights (ECHR) in a situation such as this involving conflicting rights. 

At a general level, the judgment confirms unanimously that a teacher cannot refuse to have physical contact with their pupils — including those who have entered puberty — as this would render them unable to fulfil the role of a teacher. Furthermore, the judgment confirms that an employee cannot freely refuse to shake hands with persons of other genders, but that an employer must nevertheless make a reasonable attempt to explore possible alternatives, including alternative forms of greeting, unless the employer is able to provide specific reasons why such an alternative greeting would be problematic in the particular circumstances.

Schjødt has represented the municipality from the very beginning of the case.

In a 2018 judgment by the Swedish Labour Court, the Court held that a Muslim interpreter’s religiously motivated refusal to shake hands with men constituted a protected manifestation of religion under Article 9 ECHR and the Swedish Discrimination Act, and that the employer’s handshake policy amounted to indirect discrimination. The Court further stressed that a less intrusive approach would have been to engage in dialogue with the applicant to assess whether her conduct would in fact create practical difficulties in the role, reflecting similar reasoning to the Danish Supreme Court’s emphasis on exploring alternatives.

The Danish Supreme Court’s finding that a teacher cannot refuse physical contact with students is broadly consistent with Swedish case law on roles requiring direct physical interaction. The Swedish Labour Court has, for instance, accepted requirements for dentists working with bare arms for hygiene reasons (AD 2017 No. 65), and requirements on midwives to perform abortion procedures (AD 2017 No. 23), both where religious conduct conflicts with essential job duties. 

A difference appears in the compensation outcome. In Sweden, the interpretation company was ordered to pay discrimination compensation despite no discriminatory intent. In Denmark, by contrast, no compensation was awarded, with greater weight placed on the trainee’s responsibility to contribute to resolving the situation.

Norway, too, has periodically seen debate over the balance between religious beliefs and other values, such as gender equality. One example is from 2018, when the Anti-Discrimination Tribunal considered a case in which a municipality chose not to extend the temporary position of a male school employee who refused to shake hands with his female colleagues. The assessment was made in accordance with the previous Anti-Discrimination Act and the Tribunal concluded that the municipality had neither discriminated against the individual on grounds of religion nor acted in breach of the prohibition on discrimination. Similarly, in the summer of 2023, public debate was sparked when a male pupil in a school in Oslo refused to shake hands with his female headmaster. 

Thus, the relationship between EU law and the ECHR in situations involving conflicting rights remains unresolved also in Sweden and Norway, similarly to the uncertainty noted in connection with the Danish judgment.