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Gender-related information and photos in job applications (TAS 145/2019, issued on 6 June 2019)

The Ombudsman for Equality was asked whether employers who use online job application forms can require applicants to state their gender as only male/female, as this does not take gender diversity and non-binary people into account.

The person who contacted the Ombudsman questioned the basis for inquiring about an applicant’s gender if the position is related to, for example, cleaning work. They also asked whether a cleaning work position should be allowed to demand for a photo of the applicant. The complainant stated that gender-related information and photo requirements are common and hoped that the companies that they highlighted would be notified of these issues.

Provisions related to the matter

The aim of the Act on Equality between Women and Men (hereinafter the Equality Act) is to prevent any discrimination that is based on gender identity or gender expression. The Equality Act’s discrimination prohibitions also apply to the job application process and recruitment decisions.

According to the Equality Act, every employer must promote the equality between women and men. In addition, employers are required to prevent all discrimination that is based on gender identity or gender expression.  This obligation must also be taken into account in gender equality plans.

Other forbidden forms of discrimination are specified in the Non-discrimination Act, which forbids any discrimination that is based on, for example, “other personal characteristics”.  The protection of an employee’s personal data is prescribed in the Act on the Protection of Privacy in Working Life. According to the Act, an employer is only allowed to process personal data directly necessary for the employee’s employment relationship.  The supervision of the compliance with these laws is performed by the Occupational Safety and Health Administrations of the Regional State Administrative Agency (AVI).

Asking for an applicant’s gender in the job application process

The gender of an applicant may be asked on a recruitment form with the options female and male. For the purposes of promoting gender equality, an employer must assess the situation in their workplace from a female/male perspective in, for example, their recruitments activities, and they must also monitor the gender ratios of their applicants and hires. This information on the genders of applicants is also necessary for compliance with the prohibition of discrimination.

A person’s legal gender, which is currently limited to woman or man, is public information. Belonging to a gender minority, on the other hand, is a private matter. This means that employers cannot include an option like “other” in the gender information sections of their job application forms. This could subject an applicant to discrimination on the basis of their gender identity. If an applicant wishes to state that they are non-binary, they must do so at their own initiative and not as a response to a question posed by the employer.

In addition, in the preliminary work done for the Equality Act, it was noted that the privacy of people who belong to gender minorities must be respected and that the promotion of gender equality must not focus on assessing the gender identities or gender expressions of people.

However, an applicant’s gender, gender identity or gender expression must not affect their recruitment decision, unless necessitated by the nature of the work. In cleaning positions, the gender of an employee rarely matters.

People who belong to a gender minority are at great risk of being discriminated against in working life. They may also be forced to gender themselves in a manner that contradicts their gender experience in situations where they are asked to specify their gender with the options female or male.

The Ombudsman for Equality feels that a good policy would be one where, for example, the job application form specifies that the gender options on the form – female and male – relate to the person’s legal gender, and that the employer would also like to encourage people with other gender identities to apply for the job.

Requesting for a photo in the job application process

A photo can be used to make both correct and incorrect assumptions about a person’s gender, gender identity or gender expression. However, the Equality Act cannot be used to forbid the use of photos in job applications if all applicants are requested to provide a photo regardless of their gender. However, even in such cases, an applicant’s gender, gender identity or gender expression must not affect their recruitment decision, unless the employer has an acceptable reason for this measure.

If a photo is mandatory, the employer must be able to justify its necessity as part of the candidate selection process. Requiring applicants to submit a photo may give rise to a suspected case of appearance-based discrimination. In this case, the matter falls under the jurisdiction of occupational safety and health authorities.