What constitutes discrimination?
In order for an action to qualify as discrimination, one person must have been treated less favourably than another person in a comparable situation specifically because of one or more of her or his personal characteristics. In other words, being rudely, inappropriately or otherwise poorly treated by a provider of goods or services or by an official does not necessarily constitute discrimination, especially if all customers are equally badly treated. On the other hand, if a waiter refuses to serve a person because of that person’s ethnic origin, that does constitute illegal discrimination.
Multiple discrimination means being discriminated against on the basis of two or more personal characteristics. For instance, disabled Roma may be discriminated against both because of being disabled and because of their ethnic origin.
Harassment, denial of reasonable accommodation as well as an instruction or order to discriminate also constitute discrimination as referred to in the Non-Discrimination Act.
Harassment is behaviour that deliberately or de facto infringes the dignity and integrity of an individual by creating an intimidating, hostile, degrading, humiliating or offensive environment through reference to prohibited grounds of discrimination. In this context, ‘behaviour’ is understood broadly, including speech, e-mail messages, facial expressions, gestures or the display of inappropriate material or other kinds of communication. The behaviour infringing dignity does not need to be directly aimed at a specific individual in order to qualify as his or her harassment, but it may also be aimed at a population group.
Degrading and harassing behaviour by an individual towards another individual may also be punishable under the Criminal Code, for instance as libel. Insulting or demeaning actions against a specific population group may be punishable as ethnic agitation.
An instruction or order to discriminate may for instance be guidance, instruction or obligation that concern discrimination or bring about discrimination. The criterion here is that the body or person issuing the instruction or order must have the power or authority to issue compelling orders to the recipient(s). For instance, the employer of the doorman of a restaurant has the power and the authority to issue compelling instructions and orders to the doorman. An instruction or order issued by virtue of power or authority may constitute discrimination regardless of whether the recipient actually complies with the instruction or order.
Denial of reasonable accommodation also constitutes discrimination under the Non-Discrimination Act. Authorities, education providers, employers and providers of goods and services must provide reasonable accommodation as needed. ‘Reasonable accommodation’ means accommodation that ensures that a disabled person is able to conduct daily affairs, gain access to education and employment, attend work, and also have access to generally available goods and services and perform work duties and progress in her or his career equally with all other employees. Refusal to provide reasonable accommodation may constitute prohibited discrimination.
The reasonableness of reasonable accommodation is dependent upon for instance the size of the workplace, shop or educational institution, the scope of the service and the financial status of the operator in question.
Under the Non-Discrimination Act, the following are prohibited forms of discrimination:
- direct discrimination: for instance, if a hotel refuses to give same-sex couples a shared room because of their sexual orientation.
- indirect discrimination: for instance, if an employer demands job applicants to have a perfect command of the Finnish language, even though it is not necessary for the performing of the job duties in question.
- harassment: workplace bullying involving humiliating, degrading or threatening behaviour towards an employee.
- instruction or order to discriminate: for instance, if a shop manager instructs shop employees not to serve Roma entering the shop. This constitutes discrimination even if no employee has actually followed the instruction yet.
- refusing reasonable accommodation: for instance, not providing obstacle-free access to a cinema.
The prohibition of discrimination provided for in the Non-Discrimination Act is applied broadly, applying in principle to all public and private activities. Exceptions are provided for activities in the sphere of private and family life and the practice of religion.
The Non-Discrimination Act also prohibits victimisation. This means that no one must be placed in a disadvantageous position or punished because of making a complaint about discrimination, pointing out flaws in practices in the workplace or taking other action to respond to discrimination.
All human beings are entitled to equal treatment. Discrimination is in fact prohibited in several Finnish acts. The Constitution of Finland guarantees fundamental rights to all people in Finland, and under the Criminal Code discrimination is a punishable act.