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Suspected discrimination in filling a post for upper secondary school teacher in religion and philosophy (TAS 233/2015, issued on 6 November 2015)

The Ombudsman for Equality was asked to determine whether a female applicant was discriminated against in filling a position for upper secondary school teacher in religion and philosophy. The applicant claiming discrimination had served as a substitute teacher in the upper secondary school in question for four years and in various teaching positions for over 17 years, but when a permanent position opened it was given to younger male teacher with considerably less work experience. Both the person chosen for the position and the substitute teacher claiming discrimination were qualified for the position in question. The deciding factor in selecting the teacher was that the person chosen for the position would possess the qualifications and previous experience in the use and development of "digital pedagogy". However, digital pedagogy was not mentioned in the call for applications, nor was a single question asked about it during the interview.

The applicant claiming discrimination explained that the lack of using electronic methods in instruction was a structural point due to the employer. Although the applicant had used electronic methods to some extent in her teaching, a more extensive use of electronics had been planned for the autumn of 2015 due to the lack of equipment and its inconsistent reliability. Working as a part-time teacher in the upper secondary school in question, the applicant had participated in several training courses (incl. tablets, Pedanet, electronic teaching methods, electronic matriculation examination) with the consent of the principal. The training was organised by the employer.

The Ombudsman for Equality based her statement on the job description for an upper secondary school teacher, whose purpose is to support the growth of students into good, balanced and civilised people as well as to provide them with the skills needed in further studies, the workplace, their personal interests and the diverse development of their personalities. In addition, the teacher must promote the pupils' opportunities for lifelong learning during their lives as well as work in co-operation with the pupils' families.

The comparison of qualifications for filling the position was lacking in this regard. In her statement, the Ombudsman for Equality emphasised that, even though digital competence was chosen as a focal point, other equivalent qualifications required for the successful performance of teaching duties were also important. The final comparison of qualifications is an overall assessment of education, work experience and additional qualifications, at the centre of which lies the successful performance of the given task. Even though additional qualifications gained from other positions augment the applicant's chances for selection, they must still be supplementary to the applicant's other qualifications. Selecting the most qualified applicant for any given position is also in the best interests of the employer.

Indeed, the Ombudsman for Equality found that the teacher claiming discrimination seemed, on the whole, to be the more qualified applicant for the position of teacher in religion and philosophy, taking into consideration the fact that she has fifteen more years of work experience in teaching as well as qualifications related to digital competence (even though she possessed fewer qualifications in this area than the selected applicant).

In its explanation, the employer stated that the applicant interview and references were the deciding factors in making the selection where suitability was concerned. The suitability of the applicants was compared based on interviews, information obtained from previous employers and the employer's own previous experiences. In order for an employer to cite choosing an applicant based on a personal characteristic over an applicant with higher qualifications, the employer must be able to demonstrate that it has compared the abilities and characteristics of the selected and rejected applicants. It was never explained how the city had noted that the applicant claiming discrimination had also expressed her own enthusiasm for school development and adopting electronic methods. The fact that the challenges in implementing electronic methods were primarily structural or even due to the employer (lack of personal terminal devices for pupils and reliability issues) was also not explained.

Even in this case, the thorough comparison of suitability and explanations given to the applicants would have eliminated any suspicion of the selection being made on grounds prohibited by law, such as stereotypical perceptions of women's ability to adopt new electronic methods.