Statement on the government proposal for an Act amending the Non-Discrimination Act and related acts
The Employment and Equality Committee of Parliament requested a statement from the Ombudsman for Equality on the government proposal to Parliament for an Act amending the Non-Discrimination Act and related acts (HE 148/2022 vp.). The Ombudsman for Equality was heard by the Committee on 18 October 2022.
The Ombudsman for Equality's statement assesses the government proposal from the standpoint of the Ombudsman's powers. At the same time, the Ombudsman also sought to highlight certain differences between the Act on Equality between Women and Men (Equality Act) and the Non-Discrimination Act which are especially relevant for discrimination victims' legal protection and access to their rights.
Problems relating to legal protection
The purpose of the Non-Discrimination Act (1325/2014) is to promote equality and prevent discrimination as well as to enhance the protection provided by law to those who have been discriminated against. The Act complements the equality and prohibition of discrimination provided for in section 6 (731/1999) of the Constitution of Finland. The Equality Act also complements the equality and prohibition of discrimination safeguarded by the Constitution. As a rule, the Non-Discrimination and Equality Acts apply to all public and private activities, with the exception of activities pertaining to private or family life or the practising of religion, so these Acts constitute a key part of anti-discrimination law.
The Ombudsman for Equality considers it important to examine the sanctions regimes and legal protection issues of the Equality Act and the Non-Discrimination Act in parallel. According to the Non-Discrimination Act currently in force, the Non-Discrimination Ombudsman and National Non-Discrimination and Equality Tribunal are not authorised to enforce compliance with the Act in working life. The Ombudsman for Equality does have such enforcement powers and can also refer a matter involving discrimination in working life to the Tribunal. Correspondingly, the right to refer matters to the National Non-Discrimination and Equality Tribunal by virtue of the Equality Act is limited to the Ombudsman for Equality and central labour market organisations, whereas matters falling under the Non-Discrimination Act may be referred to the Tribunal also by discrimination victims and communities promoting equality in addition to the Non-Discrimination Ombudsman.
The different powers of the authorities enforcing these Acts are a source of confusion, uncertainty and misunderstanding to discrimination victims. This is often particularly problematic in matters of intersectional discrimination, which are currently exclusively subject to the Non-Discrimination Act, even if one of the elements in the intersectional discrimination is gender, gender identity or gender expression (HE 19/2014 vp., p. 57).
The government proposal for amending the Non-Discrimination Act refers to a report by the Employment and Equality Committee, according to which the Committee also found it important to clarify the duties and division of powers of the occupational safety and health authorities, the Non-Discrimination Ombudsman and the Ombudsman for Equality in cases of labour discrimination, also to enhance the enforcement of the prohibition of multiple and intersectional discrimination (TyVM 11/2014 vp, pp. 6–7, HE148/2022 vp., p. 21). The Ombudsman for Equality discussed the same matter in the Ombudsman's report to Parliament in 2022. Among other things, the Ombudsman for Equality proposed that the Ombudsman be enforcement powers over cases of intersectional discrimination in which gender is a factor (e.g. K 1/2022 vp., p. 23).
The government proposal for amending the Non-Discrimination Act does not devote much thought to questions of intersectional discrimination. Indeed, the Ombudsman for Equality would have hoped that the government proposal would have addressed this issue as well, which imposes significant restrictions on the scope of application of the Equality Act and the Ombudsman for Equality's possibilities for enforcing the prohibitions of discrimination and promoting equality. Many important and topical equality issues, such as those concerning women and men of immigrant backgrounds, are easily excluded from the powers of the Ombudsman for Equality.
Discrimination in working life
According to the Non-Discrimination Act currently in force, compliance with the Act is enforced by the Non-Discrimination Ombudsman, National Non-Discrimination and Equality Tribunal and occupational safety and health authorities. Expanding the Non-Discrimination Ombudsman's powers to include the enforcement of the prohibition on discrimination in working life is now being proposed. The Ombudsman for Equality considers this proposal to be commendable, as it enhances the enforcement of the prohibitions of discrimination. The Non-Discrimination Ombudsman has also accumulated solid and diverse special expertise on questions of discrimination on various bases.
According to the draft government proposal, however, the Non-Discrimination Ombudsman's enforcement instruments in questions involving working life would differ from those in other areas of life, to the effect that the Non-Discrimination Ombudsman would not be able to refer a labour-related discrimination matter to the National Non-Discrimination and Equality Tribunal. This is because the National Non-Discrimination and Equality Tribunal would not be competent to hear labour-related matters falling within the scope of the Non-Discrimination Act (HE 148/2022 vp. p. 72). The proposed restriction to the Tribunal's competence does not appear to be justified. The Tribunal has the power to hear labour-related discrimination matters by virtue of the Equality Act, in addition to which the Non-Discrimination Ombudsman would be given the power to process labour-related discrimination cases.
The proposal refers to the objective of making the various bases of discrimination subject to similar remedies and sanctions, as stated in the Constitutional Law Committee's opinion (PeVL 10/2003 vp., p. 2). The statement draws attention to the monitoring of equality and discrimination issues in working life and, among other things, to the fact that labour-related matters fall outside the National Non-Discrimination and Equality Tribunal's competence. The Committee has accordingly stated that the differences in the competence of the Tribunal in non-discrimination and equality issues may pose practical problems, especially in the processing of intersectional discrimination cases (PeVL 31/2014 vp., pp. 9–10).
The Employment and Equality Committee has also expressed serious concerns over the legal status of discrimination and harassment victims in its discussion of the Government of Finland Report on Human Rights Policy. According to the Committee, the development of enforcement systems related to the realisation of victim protection is of paramount importance (TyVL 2/2022 vp., pp. 6–7).
Compensation
The government proposal for amending the Non-Discrimination Act suggests that the National Non-Discrimination and Equality Tribunal could recommend the payment of compensation in matters not related to working life.
A proposal according to which the National Non-Discrimination and Equality Tribunal could have ordered the payment of compensation to discrimination victims in matters falling within its competence was also on the table in the preparation stage of the government proposal. The Tribunal would not have had the power to order compensation in suspected cases of discrimination in working life, however.
The Ombudsman for Equality considers it important from the perspective of discrimination victims that the Tribunal be granted powers to order the payment of compensations. As the Tribunal would not have the power to issue a binding decision on the payment of compensation, the proposed procedure could mean that discrimination victims will still need to bring a separate claim for compensation to the courts. This cannot be considered a sustainable solution from the standpoint of improving legal protection. In the Ombudsman for Equality's opinion, compliance with the recommendations concerning the payment of compensations would have to monitored closely, combined with further exploration of the possibility of granting the Tribunal the power to issue binding decisions on the payment of compensations.
Indeed, the Ombudsman for Equality finds it important to promptly determine whether the Tribunal should be given the power to recommend the payment of compensations also for violations of the Equality Act.
In the opinion of the Ombudsman for Equality, it would be important to develop the legal remedies offered by the Equality Act and the Non-Discrimination Act in parallel instead of independently from each other.
19.10.2022
