Case of suspected harassment at the Olympic team preparation camp for the Tokyo Summer Olympics (TAS 156/2022, issued on 20 June 2022)

Woman A asked the Ombudsman for Equality to determine whether she had been subjected to harassment in a manner prohibited by the Act on Equality between Women and Men (609/1986, hereinafter the 'Equality Act') at the Olympic team preparation camp for the Tokyo Summer Olympics.

Woman A said that, when she was eating with the Olympic team, Employee B of the Finnish Olympic Committee had said to her, giving a laugh, that "hey Woman A, now we've got a new job for you here at the camp; you will come to my room every night to wash me all over, since I don't trust these men as washers" (hereinafter this situation is referred to as the 'washing invitation'). After the incident, Woman A tried to discuss the matter with the representatives of both the Olympic Committee and the Finnish Athletics Federation, but neither of them intervened in the case. 

Assessment of the case

Position comparable to an employment relationship

According to section 3, subsection 1 of the Act on Equality between Women and Men, employee means a person who, by contract, undertakes to perform work for another party (an employer) under the latter’s direction and supervision in return for pay or other remuneration, or who is in a public-service employment relationship or another comparable employment relationship with the State, a municipality or other public body (an authority). This Act’s provisions on employees also apply as appropriate to persons working in other legal relationships that are treated as employment relationships.

Woman A's company has a service purchasing agreement with the Finnish Athletics Federation, involving participation in major games as a member of the team, among other things. The Finnish Athletics Federation and Olympic Committee asked her to participate in the Olympic team preparation camp for the Tokyo Summer Olympics as an Olympic team member. According to the account given by Woman A, there are no other employees in her company. On the basis of the service purchasing agreement, Woman A is committed to providing services to the Finnish Athletics Federation in person. In the Tokyo Olympics, Woman A acted as a team member and was paid a fee by the Olympic Committee. In the opinion of the Ombudsman for Equality, Woman A was in a position comparable to an employment relationship as referred to in section 3 of the Equality Act with both the Finnish Athletics Federation and Olympic Committee.

Accounts

The Ombudsman for Equality requested accounts on the matter from both the Finnish Athletics Federation and from the Olympic Committee. In their accounts, both organisations stated that they had been immediately informed about the incident, but that they had not been aware of it being examined as a potential case of sexual harassment until the media raised the issue in spring 2022. Both the Olympic Committee and the Finnish Athletics Federation have instructions on how to react to harassment situations. Both organisations are committed to the responsibility programme for the sports community. According to the Olympic Committee's account, the situation described by Woman A was interpreted as bad humour. 

Man B was given an opportunity to state his opinion on the matter under section 41 of the Administrative Procedure Act. Man B said that he did not remember the incident described by Woman A or the words used by him. In Man B's opinion, it was not a question of a washing invitation or use of power. Man B stated that if he said what Woman A described him as saying, it was a case of obviously insulting and bad humour. Man B stated that, in his opinion, he was not guilty of the alleged sexual harassment referred to in the request for investigation. However, he is sorry for the grievance caused by his conduct.

Sexual harassment 

According to section 7 of the Equality Act, sexual harassment means verbal, non-verbal or physical unwanted conduct of a sexual nature by which a person’s psychological or physical integrity is violated intentionally or factually, in particular by creating an intimidating, hostile, degrading, humiliating or offensive atmosphere. In accordance with the legislative materials of the Equality Act,  sexual harassment may occur as obscene language or dirty jokes. It is a case of harassment, where the perpetrator should have exercised good judgement and should have known that their behaviour was unwanted. The legal literature explains that one may tell dirty jokes and amuse one's friends in one's leisure time, but similar language does not belong in the workplace.

According to the Ombudsman for Equality's view, Man B should have exercised good judgement and should have known that extending a 'washing invitation' to a person representing the other gender is unwanted behaviour. Another matter to be taken into consideration is Man B's position at the Olympic team preparation camp for the Olympics, which emphasises his responsibility to behave in an exemplary manner and to take care that no one at the camp is subjected to harassment or other inappropriate treatment.

In accordance with the legislative materials of the Equality Act, the responsibility for harassment is primarily borne by the perpetrator him- or herself. The perpetrator may have to bear not only criminal liability for their actions, but they may also be held liable under the Tort Liability Act. In his account, Man B said that he does not remember the incident or the words he said. According to the Ombudsman for Equality's view, forgetfulness does not eliminate the harasser's responsibility.

Employer's responsibility for eliminating harassment

According to section 8d of the Equality Act, the action of an employer shall be deemed to constitute discrimination prohibited under the Act if, upon receiving information that an employee has been a victim of sexual or other gender-based harassment in the workplace, the employer neglects to take the steps available to eliminate the harassment. 

In accordance with the legislative materials of the Equality Act, in the case of neglecting to eliminate the harassment, the plaintiff should establish that they have notified the employer of the harassment, and that the employer has not taken the steps available to eliminate the harassment. Woman A said that she had tried to get support both from the Olympic Committee and from the Finnish Athletics Federation. 

An efficient measure taken to address harassment in the legislative materials of the Equality Act is deemed to be taking the alleged harassment seriously and initiating an immediate investigation. Another effective measure in the legislative materials of the Equality Act is deemed to be subjecting the perpetrator to steps under employment legislation or to disciplinary action corresponding to the nature and seriousness of the harassment. Based on the employer's right of supervision, after having been informed that harassment has taken place, the employer has sufficiently effective powers and means to also take action in relation to the person guilty of harassment. Depending on the level and recurrence of the harassment, the measures to be taken include a caution or a reprimand imposed on the perpetrator, their lay-off, and, in the final stage, dismissal or termination of the employment relationship.

The burden of proof is transferred to the employer when there is reason to suspect that an employee has been subjected to harassment at the workplace. The employer has an opportunity to prove that they have met the obligations of a diligent employer. Both the Olympic Committee and the Finnish Athletics Federation stated in their accounts that Woman A had not specified that what she had experienced was sexual harassment. In the opinion of the Ombudsman for Equality, the employer's obligation to investigate the matter was not eliminated because Woman A did not specify the situation as sexual harassment. Instead, it would have been necessary to examine the course of events. 

The Olympic Committee only started to investigate the matter after having been subjected to media attention several months after the incident, even though the Olympic Committee had been informed of the matter immediately. Furthermore, it appears that the Olympic Committee's procedure concerning dealing with harassment was not complied with in this case. According to the accounts given, the Olympic Committee did not discuss what had happened with Man B. For these reasons, the Ombudsman for Equality does not consider the steps taken by the Olympic Committee to be sufficient. In the opinion of the Ombudsman for Equality, the Olympic Committee neglected its obligation to take steps available upon becoming aware of the sexual harassment, as referred to in section 8d of the Equality Act.

In the Ombudsman for Equality's view, after having been informed of the harassment experienced by Woman A, the Finnish Athletics Federation should have informed the Olympic Committee of the matter and requested it to investigate the case and to prevent the employee from being harassed in the future. Therefore, the Ombudsman for Equality is of the opinion that the Finnish Athletics Federation neglected its obligation to take steps available upon becoming aware of the sexual harassment, as referred to in section 8d of the Equality Act. In addition, the Ombudsman for Equality recommends that the Finnish Athletics Federation draw up guidelines and procedures also for situations in which an employee is subjected to harassment.

20.06.2022