Ombudsman for Equality

Discrimination in recruitment (Section 8(1) (1–2) of the Finnish Equality Act)

The Finnish Equality Act aims to prevent situations where a person is appointed to a position unjustly on the basis of sex or gender when another candidate would have been more qualified. The same applies to situations where employees are allocated training placements or promoted to new positions internally. Applicants also cannot be turned down on the grounds of pregnancy, childbirth, parenthood or family commitments.

A finding of discrimination can be made regardless of whether there has been any fault or negligence on the part of the employer.

Presumption of discrimination

A presumption of discrimination arises if an unsuccessful candidate is able to prove that he or she was more qualified for a position than a person of the opposite sex who was ultimately appointed. To rebut a presumption of discrimination, employers must show that their actions are attributable to a justifiable factor not connected to sex or gender.

Whenever applicants include both men and women, a comparison of merits must be carried out. The comparison of merits assesses applicants’ qualifications, previous work experience, and any qualities, knowledge and skills that could prove useful in the job. Further information:
Comparision of merits

What constitutes an acceptable reason?

Candidates’ suitability and aptitude can in some circumstances amount to acceptable reasons allowing employers to choose a less merited person for a position. Employers can also rebut a presumption of discrimination by proving that their actions were based on a weighty, acceptable reason arising from the nature of the work. Roles in theatre performances, for example, can be advertised for just the sex that the character depicts. Similarly, employment of a personal nature, such as caring for an elderly person in the person’s home, can be advertised for just men or women. Further information:
Suitability or aptitude

What constitutes discrimination in recruitment
under the Finnish Equality Act?

The Finnish Equality Act does not restrict employers’ right to choose the best person for a job. The act aims to prevent situations where a person is appointed unjustly on the basis of sex or gender when another candidate would have been more qualified. Similarly, the act aims to prevent preferential treatment of either sex in cases where employees are allocated training placements or promoted to new positions internally. Discrimination on the grounds of pregnancy, childbirth, parenthood or family commitments is also prohibited. More detailed information is available on the prohibition of discrimination on the basis of pregnancy and parenthood in recruitment. Further information:
Pregnancy

According to Section 8(1)(1) of the Finnish Equality Act, employers may be found guilty of discrimination if they upon employing a person or selecting someone for a particular position or training placement bypass a more qualified person of the opposite sex in favour of the person chosen. However, such practices are not considered to constitute discrimination, if employers can prove that

• their actions are attributable to a justifiable factor not connected to sex or gender, or
• their actions were based on a weighty, acceptable reason arising from the nature of the work.

Burden of proof and presumption of discrimination

Applicants must present probable cause on the basis of which discrimination can be presumed to have taken place. A presumption of discrimination arises if an unsuccessful candidate is able to prove that he or she was more qualified for a position than a person of the opposite sex who was ultimately appointed. To rebut a presumption of discrimination, employers must show that their actions are attributable to a justifiable factor not connected to sex or gender.

If an applicant was pregnant or on parental leave at the time of the incident, another person of the same sex can be used for the comparison (Finnish Supreme Administrative Court, 1992-A-3). A recruitment decision is considered to be in violation of the Finnish Equality Act if the employer in question cannot prove that a more qualified applicant was turned down due to a weighty, acceptable reason arising from the nature of the work or a justifiable factor not connected to sex or gender.

What constitute acceptable reasons arising from the nature of work?

A presumption of discrimination can also be rebutted in situations where sex or gender is used as grounds for decision-making but where employers can prove that their actions were based on a weighty, acceptable reason arising from the nature of the work. In some circumstances, employers can choose a man or a woman for a specific job without being guilty of discrimination. Roles in theatre performances, for example, can be advertised for just the sex that the character depicts. Similarly, employment of a personal nature, such as caring for an elderly person in the person’ s home, can be advertised for just men or women. In principle, the most merited candidate can only be turned down for a generally acceptable reason.

Is favouritism allowed in recruitment?

Temporary special measures that are based on a plan and that are in place for the purpose of promoting effective equality are not deemed to constitute discrimination on the basis of sex or gender (Section 9(4) of the Finnish Equality Act). Applicants of the underrepresented sex may be favoured subject to certain conditions and a written equality plan. According to the case law of the European Court of Justice, this so-called positive action can only be enforced if female and male applicants are equally or nearly equally qualified and provided that personal characteristics of all applicants are taken into account when assessing applications. Favouritism must not be automatic. (For more information, see rulings of the European Court of Justice in cases Marschall C-409/95 on 11.11.1997, Badeck C-158/97 on 28.3.2000, and Abrahamsson C-407/98 on 6.7.2000.) Positive action must always be aimed at promoting effective equality between the sexes.

Right to claim compensation for discrimination

Individuals are entitled to claim compensation from the offender if they have been victims of discrimination in recruitment. Claims for compensation can be brought regardless of whether other complaints have already been made regarding the potentially discriminatory decision or practice in question (Finnish Supreme Court, 2005:25; Finnish Supreme Court, 1997:63).

Compensation and claims
Retrospective reviews of recruitment processes

The prohibition of discrimination governed by Section 8 of the Finnish Equality Act can in most cases only be enforced once employers have made their final decision to hire a specific person. The general prohibition of discrimination governed by Section 7 of the Finnish Equality Act also applies to procedures that precede employers’ decisions. Such procedures include interviews and questionnaires, for example. However, no compensation can currently be awarded on the basis of violations of Section 7 of the Finnish Equality Act.

What to do if you suspect that you have been
the victim of discrimination in recruitment

To find out what you can do if you suspect that you have been the victim of discrimination in recruitment, see  
Are you a victim of discrimination?
and especially
Suspected cases of discrimination in the workplace