Suspected case of discrimination in the recruitment of substitutes for the positions of specialised youth worker and youth worker in the City of Y (TAS 418/2018, issued on 29 January 2019)
Man X requested the Ombudsman for Equality to investigate whether he had been discriminated against in a manner that violated the Act on Equality between Women and Men (609/1986, hereinafter the Equality Act) on the basis of his gender when he was not chosen as the substitute for a specialised youth worker position or a youth worker position in the City of Y since, in both cases, a woman was chosen instead. X felt that he was more qualified than either A or B, the women chosen for the positions.
In its report to the Ombudsman for Equality, the City of Y stated that the employment history information that X included in his application did not demonstrate a level of merit that would have warranted inviting him to an interview or choosing him directly as the most qualified applicant to the fixed-term positions that were available at the time.
According to the City of Y, X, A and B have all worked for the City of Y before the application processes in question. A and B have demonstrated a level of competence that made them the most qualified and suitable applicants for the positions that were available at the time. In the case of X, the City of Y noted that the deficiencies in his ability to cooperate with others constituted a particularly strong obstacle for his selection.
Assessment of the case
In a recruitment situation, a presumption of discrimination arises if the person who suspects that they have been subjected to discrimination can prove that they were more qualified for the job than the person of the opposite gender who was chosen. To be able to disprove this presumption of discrimination, the employer must demonstrate that there was another acceptable reason for their actions than the applicant’s gender. If the employer cannot prove the existence of this reason, the selection will be considered to have violated the Equality Act. The employer’s procedure does not need to be deliberate or negligent in nature to be considered discriminatory and it does not need to have been motivated by any discriminatory intent.
The Equality Act obligates employers to perform a qualification-oriented comparison when the pool of applicants includes representatives of both genders. Although section 8(1)(1) of the Equality Act does not expressly reference the matter, it does obligate employers to assess, for the purposes of their recruitment decision, the merits of an applicant or at least provide the applicant with the opportunity to present them.
A person’s merits must always be assessed in light of the position in question and on the basis of the selection criteria that the employer has established beforehand. The comparison of qualifications must pay attention to the applicants’ educational background, previous work experience as well as any qualities, knowledge and skills that could be of use in the job and that could therefore be considered to constitute additional merits.
A person’s suitability, aptitude, ability and other similar subjective personal attributes do not constitute the type of merit referred to in section 8(1)(1) of the Equality Act. The employer may, however, use these as their selection criteria, in which case they can be taken into consideration as potential Equality Act-compliant justifications for choosing a less qualified applicant. The burden of proof for proving the existence of this justification lies with the employer.
The comparison of the applicants’ qualifications can be based on, for example, tests and interviews, but they can also be based on accounts of how the applicants have performed their previous duties. The key point is that the employer must be able to demonstrate that they have truly compared the skills and characteristics of the person who was selected and the person who was not. Legal practice has also demonstrated that the person with the most suitable personal characteristics can be chosen for a job unless the suitability assessment itself discriminated on the basis of a person’s gender.
In his statement, the Ombudsman for Equality emphasised that person X, who requested the statement, can be considered more qualified for the positions than A or B on the basis of the merits that can be assessed objectively.
This means that both recruitment decisions gave rise to a presumption of discrimination due to the fact that X has a more advanced degree than A as well as more work experience than A or B.
To counter this presumption of discrimination, the employer must be able to demonstrate the justifications used to determine the personal attributes of A and B that made them more suitable for the positions than X – in this case, their ability to cooperate in particular. Since all of the aforementioned persons have worked for the same employer, the employer can evaluate their suitability on the basis of their previous work experience in the City of Y. Since X was not invited to an interview, his suitability could not be assessed on the basis of an interview. This means that the employer cannot refer to the suitability assessment for A that was conducted on the basis of her interview. The specialised youth worker was chosen without an interview.
The purpose of the Equality Act is not to restrict an employer’s right to choose the candidate they consider the best for a job, but to ensure that the choice is not based on the candidate’s gender. In other words, employers have the right to make the choices they feel are most appropriate. They must, however, be able to justify that the decision is based on the factors necessary for the successful performance of the work.
The Ombudsman for Equality noted that the Equality Act obligates employers to assess, for the purposes of their recruitment decision, the merits of an applicant or at least provide the applicant with the opportunity to present them. The applicant is personally responsible for ensuring that the employer receives the necessary information. On the other hand, the employer cannot attempt to be released from their liability for the type of discrimination referred to in the provision by investigating or assessing the applicants’ merits in an inadequate manner.
Based on the reports submitted on the matter, it can be concluded that X did not append a CV or work references to his applications. As was stated previously, the applicant is personally responsible for ensuring that the employer receives the necessary information. The initial assumption is that the information that an applicant includes in their application is truthful. The applicant can be asked to present their degree and work certificates at a later stage of the selection process, for example during an interview. Instead of asking X to supplement his application during the selection process, the employer stated in their report that “the information provided by X on his work history and the application documents we received did not provide any such information or prove any such merits that would have warranted inviting him to an interview or selecting him directly as the most qualified applicant to the fixed-term positions that were open at the time”.
The employer’s actions must be based on the appropriate and impartial evaluation of a person’s merits. Careful and equal compliance with the chosen recruitment process is the prerequisite for ensuring that the selection process is compliant with the Equality Act. The Act does not, however, mandate the inclusion of any specific formalities during the recruitment process.
The Ombudsman for Equality’s written inquiry process does not allow for the assessment of the suitability of the persons involved for the positions at hand. The actual presentation of the evidence concerning the suitability of the parties’ merits for the positions will take place in a district court in a compensation claim case against the employer, if the parties are unable to settle the matter by other means.