What is not discrimination?
Justifications for different treatment
Different treatment does not constitute discrimination if the treatment is based on legislation and it otherwise has an acceptable objective and the measures to attain the objective are proportionate. For instance, denying entry to a licensed restaurant to persons under 18 years of age is not discrimination, because this is provided for by law.
However, according to the Non-Discrimination Act different treatment may be justified even in the case that justifications for the treatment have not been specifically provided for by law (except on grounds of ethnic origin), if the treatment has an acceptable objective in terms of fundamental and human rights and the measures to attain the objective are proportionate. Acceptable objectives include the imposing of requirements regarding hygiene or customer safety in the provision of services.
Justification for different treatment in hiring and employment relationships
Different treatment in private-sector employment relationships or public service employment relationships, or in practical training or similar contexts, and also in hiring, is acceptable if the treatment is based on genuine and determining occupational requirements arising from the nature of the job duties and the performance of those duties. Furthermore, the different treatment must be proportional and its objective legitimate.
For instance, a registered religious community may require its employees to subscribe to a specific creed or belief when that creed or belief is a genuine and determining requirement in view of the nature of the professional activities involved or the context in which the work is to be done.
It is also acceptable for instance to hire a member of an ethnic minority or sexual minority as an employee of an organisation promoting the rights of such minorities.
Different treatment based on age or place of residence is allowable if that treatment has an objectively or otherwise reasonably justified motivation based on employment policy or labour market objective , or if that treatment is due to the age limits legally specified for qualifying for particular pension or disability benefits.
Measures of positive action necessary to ensure de facto equality, which improve the status and circumstances of a particular group, do not constitute illegal discrimination.
Positive action is lawful if its purpose is to promote actual equality or to prevent or eliminate disadvantages caused by discrimination. Positive action is therefore acceptable also for the prevention or alleviation of disadvantages not caused by discrimination as such. For instance, supporting individuals in a socially disadvantaged position, such as disabled persons, may be justifiable even if their disadvantaged status is not demonstrably due to discrimination.
Examples of positive action :
- Language courses or other training provided for immigrants to ease their integration into Finnish society.
- Admission quota at educational institutions for certain socially disadvantaged groups or groups at risk of discrimination.
- Targeted coaching for specific population groups for entrance examinations to an educational institution
- Employment subsidy for young people
In particular, when applying positive action in hiring employees, the following points must be taken into account:
- Positive action must not be applied automatically; every hiring decision must be made on a case-by-case basis, and priority must not automatically and absolutely be given to members of disadvantaged groups
- An applicant subject to positive action must be as equally or almost as equally competent as the other applicants
- The means used must be proportionate to the objectives sought: positive action is not justifiable if actual inequalities in the context are of a minor nature
In addition, it has been noted in the legal literature that to prevent arbitrary justifications in hiring decisions, any positive action should be decided in advance and declared in the job ad.
Poor treatment or customer service
Poor or inappropriate treatment or customer service does not necessarily constitute prohibited discrimination. In order to qualify as discrimination, the treatment must be motivated by prohibited grounds for discrimination. For instance, an employment office client may suspect discrimination if it turns out that the client advisor has not provided a full explanation of jobseekers’ responsibilities, but this was not necessarily due to the client being of a certain age or disabled or of a certain ethnic origin.
Of course, the situation would be interpreted very differently if the advisor were to utter potentially derogatory comments about the employment prospects of the client’s reference group.
Poor customer service and an official decision denying a client’s application for instance for a benefit may also easily create the impression of discrimination. However, unless it can be credibly shown that such poor service or such an unfavourable decision was motivated by prohibited grounds for discrimination, the matter cannot be pursued as a discrimination complaint. In such a case, it is recommended that the complainant explore other available procedures for rectification and appeal.