Application of the quota rule in the board of Tampere University (TAS 470/2018, issued on 31 October 2019)

The board of Tampere University was formed in 2018, and out of its seven members, only two were women. The Ombudsman for Equality decided to investigate whether the appointment of the board had complied with the provisions presented in section 4 a of the Act on Equality between Women and Men (609/1986, hereinafter the Equality Act).

In their report to the Ombudsman for Equality, the members of the Academic Board of Tampere University stated that they had been aware of the fact that, in accordance with the Equality Act, the board of a foundation university must include an equal number of women and men, unless there are special reasons to the contrary. The starting point of the preparatory work done by both the appointment committee and the Academic Board had been to ensure that both genders were equally represented in the board. The Academic Board regretted the fact that this objective for gender equality could not be met in the best possible way, as the final composition of the board was five men and two women.

According to the Academic Board’s interpretation of section 4 a (2) of the Equality Act, on the basis of the legal literature presented below and the application instructions issued by the Ombudsman for Equality, it is permissible to postpone the realisation of gender equality from a legal perspective if, for special and practical reasons, the goal of optimal gender equality can be achieved at a later date than what is prescribed in section 4 a (1) of the Act. The Academic Board stated that the aforementioned goal of optimal gender equality can be achieved in the board at the beginning of 2020, since the terms of two male members will end in 2019.

In his statement, the Ombudsman for Equality emphasised that section 4 a of the Equality Act contains provisions on the composition of public administration bodies and bodies exercising public authority. Subsection 2 of said section states that if a body, agency or institution exercising public authority, or a company in which the Government or a municipality is the majority shareholder has an administrative board, board of directors or some other executive or administrative body consisting of elected representatives, this must comprise an equitable proportion of both women and men, unless there are special reasons to the contrary. This provision also applies to boards.

As universities and higher education institutions exercise public authority, they are obligated to appoint an equal number of men and women to their executive or administrative bodies. The detailed justifications of Government Proposal 90/1994 vp emphasise that gender equality is best achieved when an equal number of women and men are appointed to a body. In any case, it is not enough to appoint only a single woman or man, as both women and men must be provided with an equal opportunity of being selected to a multi-member body on the basis of their expertise.

The goal of equal composition is the same as in section 4 a (1), i.e. 40–60%. The goal of gender equality is therefore no less essential in section 4 a (2) than in the quota rule, but for practical reasons this goal may not be achieved as often, or it may only be achieved further along in the future than what is stated in section 4 a (1).

According to subsection 3 of said section, authorities and all parties that are requested to nominate candidates for bodies referred to in the same section of the Act must, wherever possible, propose both a woman and a man for every membership position.

In a decision by the Supreme Administrative Court (KHO 2/2017), it was stated that the city board involved in the case did not comply with the gender equality rule specified in section 4 a (2) of the Equality Act when it made its decisions concerning the appointment of persons in shop steward positions to the boards of the companies that the municipality was the majority shareholder of. The boards of said companies could also have selected their members from a large number of people who were familiar with the fields that the companies operated in, in which case the equal gender representation requirement would have been fulfilled. When this factor was taken into account, the appointments made by the city board to the companies that the municipality was the majority shareholder of had been made in a manner that violated section 4 a (2) of the Equality Act.

The quota rule may be deviated from for special reasons. The concept of ‘special reasons’ must be interpreted narrowly. One example of this kind of reason is a body that focuses on a very specialised area where the experts are only either women or men. The existence of a special reason must always be justified and said reason must exist by the time the body is to be appointed. The requirement of the quota rule must, therefore, be taken into account when appointing any bodies, and the existence of any possible special reasons must be expressly stated and justified in the appointment decision. The presentation memorandum must specify the measures that the preparatory party has implemented for the realisation of gender equality.

In his statement, the Ombudsman for Equality requested that Tampere University take the aforementioned into account when appointing new members to its board after the end of the terms of two of its board members on 31 December 2019.