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Non-Discrimination Ombudsman Kirsi Pimiä's speech in the Equinet conference "Investing in equality"

Non-Discrimination Ombudsman Kirsi Pimiä's speech in the Equinet conference "Investing in equality"

Fundamental and human rights and equality are not matters of opinion, nor are they meant only for the good days. The significance of these issues is highlighted in socially challenging situations. The fundamental and human rights guarantee protection for all, and the most disadvantaged people in a society are the ones who need that protection the most. Some are more vulnerable to discrimination and exploitation than others due to their personal features.

The recent political changes – the rise of populism and nationalism, both internationally and in Finland – have hardened attitudes, changed politics towards closing borders, and increased partially artificial confrontations. From a human rights perspective, the social situation in Finland has become more challenging. This is visible as prejudice, discrimination and hate speech.

The social situation and atmosphere have an impact also on the Non-Discrimination Ombudsman’s work. The core of the Non-Discrimination Ombudsman’s task consists of evaluating and ensuring that the rights of persons and the legal protection of individuals are enforced as equally as possible. The Non-Discrimination Ombudsman is an autonomous and independent authority, whose key task consists of promoting equality and tackling discrimination.  It may be a question of a Roma family being treated in a discriminatory manner in the rental market, an asylum seeker being separated from their family for no reason, a victim of human trafficking not receiving health services to which they are entitled, or a person to be removed from the country not being allowed to contact their assistant. The Ombudsman supervises how authorities and private operators comply with their statutory obligations.

The key objective of renewal of the Non-Discrimination Act 2015 was to broaden the scope of legal protection, so that the prohibition of discrimination applies to all private and public activities. Only engaging in religious practices and private activities belonging in the area of family life were excluded from the scope of application. Another essential objective was ensuring that the prohibition of discrimination and the requirement of promoting equality apply to all characteristics related to an individual. For this purpose, the list concerning the prohibition of discrimination was extended beyond the grounds provided in the Directives.

Legislation concerning non-discrimination provides various measures for combating discrimination and promoting equality. The Non-Discrimination Ombudsman can intervene in discrimination experienced by individuals at a low threshold and promote equality in a less drastic way in comparison to a legal process.

In addition to the Non-Discrimination Act, discrimination is of course also prohibited under the Criminal Code of Finland. In comparison to the Criminal Code, the Non-Discrimination Act facilitates the proving of discrimination by distributing the burden of proof in demonstrating discrimination.

In legal issues concerning the application of the Non-Discrimination Act, the Ombudsman must be reserved an opportunity to be heard in courts and by the prosecutor. These statements are often related to the interpretation of the non-discrimination legislation. The Ombudsman has also used her right to issue a statement in legal cases, where the aim has been to promote equality on a more extensive scale, in addition to the individual case. In her statements submitted to courts and prosecutors, the Non-Discrimination Ombudsman has also paid attention to the amount of compensation provided in the Non-Discrimination Act.

The Ombudsman promotes equality through co-operation with interest groups and advocacy work for example, and encourages different operators to utilise equality planning. The promotion of equality prevents discrimination and increases people’s awareness of the prohibition of discrimination.

The operating procedures of the Non-Discrimination Ombudsman include, among others, expressing an opinion on discrimination, promoting conciliation between parties, taking the matter to the Non-Discrimination and Equality Tribunal for resolving, and assisting victims of discrimination in court. In the easiest scenario, the situation can be resolved by telephone or e-mail. The Ombudsman takes action especially in matters that are significant in terms of principle, and in cases where the action of the Ombudsman may have essential significance for the end result.

During the first three operating years of the Non-Discrimination Ombudsman, we have received contacts concerning all grounds for discrimination and regarding experienced or observed discrimination from all areas of life. The number of contacts has increased significantly each year. Contacts regarding origin and disability have been the most common ones, both amounting to over 20 per cent of all contacts.

With regard to age-related contacts it must be noted that they mostly concern various types of general age limits or discounts or services targeted to a specific age group, rather than the negative treatment of an individual on the basis of age. The Non-Discrimination Ombudsman has processed the justifications of general age limits. For example, the Ombudsman was contacted in a case where a municipality was planning to refuse persons under the age of 16 entry to the self-service library. The refusal was not enforced.

Individuals vulnerable to discrimination on the basis of various characteristics at the same time may encounter multiple discrimination. We have received contacts regarding such events, as well. Gender-based discrimination falls within the remit of the Ombudsman for Gender Equality.

Members of different minorities face new kinds of challenges in different stages of their lives, and in the context of the related services. This combination of various grounds for discrimination is not always taken into account in individual cases. Consequently, an individual’s entire lifespan should be taken into account in the promotion of equality. For example, the features related to the realisation of the rights of older members of sexual minorities or older persons with disabilities are partly different than those related to the rights of working-aged or young people.

The number of contacts received by the Ombudsman is not necessarily a direct indicator of the amount of actual discrimination, or of the groups that encounter discrimination most often. Groups that are represented by a strong non-governmental organisation and that are linked to well-publicised equality issues may be more aware of the Non-Discrimination Ombudsman than others.

Gaining comparable and regularly repeated research data on discrimination is essential to prevent discrimination and promote equality. A regularly conducted barometer that would take the different grounds for discrimination into account would produce analysed data on discrimination, which would create a more sturdy foundation for intervening in discriminatory structures and problems.

By way of research, it is possible to investigate certain population groups’ access to their rights. Access to rights means in a broader view the realisation of rights, whereas in a narrower sense it is a question of whether individuals receive efficient and fair treatment in a situation where they suspect their rights have been violated. One group that is likely to have insufficient access to their rights are the children. In theory, the legal remedies referred to in the Non-Discrimination Act are applicable equally regardless of age, but the Non-Discrimination Ombudsman has not received any complaints from children themselves.

The Non-Discrimination Ombudsman regularly receives contacts that do not constitute discrimination contrary to the Non-Discrimination Act. However, these cases may still involve poor administration, inappropriate treatment, or a problem related to other legislation or implementation thereof. The refusal of disability services is one example of an area, where the contacts received by the Ombudsman are related to the implementation of the legislation on disability services, rather than to discrimination under the Non-Discrimination Act. However, problematic access to rights does have a negative effect on the inclusion of persons with disabilities, and it prevents the realisation of the de facto equality of persons with disabilities. Consequently, the obligation of authorities to foster equality shall be acknowledged extensively in all organisation of public services.

Sometimes there lies a broader problem related to attitudes behind an individual case of discrimination. For example, it may be difficult to change the atmosphere in an organisation by intervening in an individual case, but in some situations highlighting the problem may bring about an organisational shift. The Non-Discrimination Ombudsman promoted reconciliation between a city and a resident in a case, where the city had procured emergency housing services from a religious association. The association required the customer to participate in religious activities against the customer’s belief.

According to the Non-Discrimination Ombudsman’s assessment, a large portion of discrimination still remains hidden. The reasons for this are varied: the victims of discrimination may not trust authorities, or their awareness of their rights and the legal remedies may be insufficient. People may fear the consequences of taking a matter forward, and the legal remedies do not always produce the desired result. For example, the nature of some forms of structural discrimination is such that it cannot be efficiently tackled with the non-discrimination legislation. If the equality impacts have not been acknowledged in the drafting of legislation, the law can place a certain group in a less favourable position in comparison to others.

Throughout the Non-Discrimination Ombudsman term of office so far, disability has been the second most common discrimination-related reason for contacting the Ombudsman. The Ombudsman has received contacts concerning all areas of life. The Non-Discrimination Ombudsman’s work highlights many issues related to shortcomings in accessibility and availability. The Ombudsman emphasises the importance of respecting the self-determination right persons with disabilities, and the full enforcement of equality in the society, with regard to structures as well as attitudes.

Based on the results of our survey on the discrimination experienced by the persons with disabilities and the hundreds of complaints received by the Non-Discrimination Ombudsman it can be concluded that there is much work to be done to promote the inclusion and equality of persons with disabilities. The rights of the persons with disabilities are officially good in Finland, but there are problems in gaining access to these rights. The prevailing attitudinal climate is one essential factor behind the problems encountered by persons with disabilities .

The full and equal inclusion of persons with disabilities in the Finnish society cannot be developed or enforced without a significant change in attitudes. To improve the general attitudes, we need education in fundamental and human rights and the ability to understand the diverse nature of disability.

Services and public events are still organised also in inaccessible facilities. Furthermore, there are problems in the availability of different services. For example, a person without disability can acquire tickets to public events easily and cost-effectively on the websites of ticketing agencies. However, this is not an option for persons using a wheelchair, if a wheelchair seat cannot be reserved through the online service. An accessible society is a fundamental precondition for inclusion and equality.

Often it may seem to the main population that equality is well enforced, when, in reality, it is not. A society and its services have generally been built only for a portion of the population. However, it may be also a question of direct discrimination against persons with disabilities or a refusal of reasonable accommodation, rather than only a case of discrimination establishing itself in the structures over time.

The Non-Discrimination Act prohibits harassment related to any of the grounds for discrimination provided in section 8(1) of the Non-Discrimination Act. Harassment means action that is in deliberate or de facto infringement of the dignity of a person, when the action results in the creation of a degrading or humiliating, intimidating, hostile or offensive environment towards the person.

The prohibition of harassment laid down in the Non-Discrimination Act is one measure for intervening in hate speech. The Non-Discrimination Ombudsman works to prevent and combat hate speech by, for example, participating actively in the public debate, lobbying for combating hate speech, investigating harassment reports, taking harassment cases to the National Non-Discrimination and Equality Tribunal, and submitting requests for investigation to the policy or the Prosecutor General.

Legislation creates the foundation for non-discrimination, but implementing it requires awareness of the rights, active promotion of equality, intervening in discrimination, and effective and proportionate sanctions. The objective is clear, but how do we reach it? Luckily, in Finland the Non-Discrimination Act has not imposed the task of promotion of equality only on us supervisory authorities, but on all authorities, employers, education providers and educational institutions. In addition, numerous non-governmental organisations and representatives of civil society are working hard to promote equality among people. Furthermore, it does not harm business, either. From the perspective of results, it is reasonable to invest in preventive action. Discrimination and other infringements can be prevented with counselling, training and communication. The resources allocated to the equality bodies’ work can be regained many times over when we can avoid these often serious infringements and their costs to both the public and private sector.

I want to perceive the future positively. Equality as such is set in stone; it is one of the most essential rights and values of democracy and the rule of law. In practice, the progress of equality happens in small steps. At the moment, the global situation is not looking all that good. However, an acquaintance of mine, a historian, consoled me by saying that from a historical perspective a few years mean nothing, and the world is still developing for the better. I believe this to be true and want to work to maintain this direction. Human rights, non-discrimination and equality must be defended. We come back to why human rights agreements have been drafted. Because each and every human being is equally valuable and must therefore be treated equally.

01.06.2018