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Suspected discrimination of a transgender person in recruitment (TAS 432/2022, issued on 5 July 2023)

A job applicant asked the Ombudsman for Equality to determine whether they had been discriminated against in recruitment in a manner prohibited by the Act on Equality between Women and Men (Equality Act).  The person suspected that they had not gotten the job they applied for because of their transgenderism.

The employer had invited the applicant to an official job interview, in which they were asked about their military service, among other things. The job applicant had answered that they had not been conscripted because they have a female personal identity code and are thus not liable for military service. After that, the employer had asked the applicant about their examination period, treatments and procedures related to transgenderism as well as about their childhood as a transgender person. 

The employer justified its decision not to recruit the applicant by stating that their studies and work experience were not sufficient at the time.

The Equality Act prohibits discrimination based on gender, gender identity and gender expression. Applicants may not be placed in an unequal position in recruitment procedures or decisions unless necessary due to the nature of the work. 

An assumption of discrimination in recruitment arose from the material submitted to the Ombudsman for Equality. The employer did not give any other grounds for not recruiting the applicant apart from their insufficient studies and work experience – factors that the employer was aware of before inviting the applicant to an interview. There is a temporal connection between the basis for discrimination, the employer's awareness of it and the suspected discrimination. The employer was not able to disprove the assumption of discrimination by demonstrating that the negative recruitment decision would have been due to other acceptable reasons than the applicant's gender identity.

Recruitment procedures and gender-based harassment

With regard to the interview procedure, the Ombudsman for Equality pointed out in their statement that asking about military service in a job interview is only permitted if directly necessary for the position. As gender may not be given significance in the choice of employees, asking about military service or discussing gender affirmation and gender identity in recruitment constitutes conduct that cannot be considered to comply with the Equality Act. 

The Ombudsman for Equality also pointed out that the employer has an obligation to purposefully and systematically prevent discrimination based on gender identity and gender expression. The employer has a pronounced responsibility for the course and lawfulness of a recruitment discussion. The employer should ensure that the employee does not disclose sensitive information even on their own initiative. If this happens, the employer should steer the conversation to other topics. This is also important to avoid violating the mental integrity of the job applicant. In the Ombudsman for Equality's opinion, the employer's representatives should have understood based on normal discretion that continuing the discussion about matters involving gender affirmation was not necessary or appropriate. Questions related to the subject cannot be justified by the fact that the applicant disclosed being part of a gender minority on their own initiative. 

Harassment based on gender can also be evaluated as discrimination prohibited by section 7 of the Equality Act. An act that is not sexual in nature can still constitute gender-based harassment (HE 195/2004 vp, p. 13). Even a single act can meet the definition of prohibited harassment. An act can be considered to constitute gender-based harassment even if it is not intended to humiliate the subject. It suffices that the act has de facto violated the subject's mental or physical integrity and created a threatening, hostile, degrading, humiliating or oppressive atmosphere. Based on the information obtained on the matter, the Ombudsman for Equality found that the employer's conduct meets the definition of gender-based harassment and was thus in violation of the Equality Act.