Suspected discrimination on the basis of pregnancy in recruitment (TAS 338/2019, issued on 6 April 2020)

Company X was in the process of recruiting person A, which was why person A and the representative of the company had discussed the job offer and the relevant details. During the discussion, A also informed the company about her pregnancy. A suspected that she had been discriminated against in recruitment on the basis of her pregnancy, because after having told about the pregnancy, the company did not offer her the job after all but announced that they would continue searching for new applicants. In the recruitment process, the company X used the services of the recruitment company Y, which was also aware of the job offer.

From the perspective of assessing suspected discrimination, the essential question was why the employer had decided not to select the person to the job at a stage where they had already been willing to offer her the task. The fact that the position had been reopened for application later and another person had been selected to it did not affect the assessment of the previous situation.  In the case, it was also assessed how the responsibility for potential discrimination is divided between the employer and the recruitment company.

Discrimination in recruitment prohibited by the Act on Equality between Women and Men

According to the Act on Equality between Women and Men (Equality Act), a pregnant person or a person taking family leave should be treated in the same way as they would be treated if they were not pregnant or taking family leave. They should not be placed in a less favourable position on the basis of pregnancy or family leave. If the employer were aware of the applicant's pregnancy, the employer might have to prove that pregnancy did not affect the decision why the applicant was not selected to the job, but that there were other acceptable reasons for this. If no such reason is presented, the choice is considered to be in violation of the Equality Act. To be considered discriminatory, the employer's conduct does not need to be intentional or negligent or to have been carried out with a discriminatory intent.

As such, the prohibition of discrimination based on gender as referred to in the Equality Act applies to both the employer and the recruitment company used by it. However, the responsibilities of the employer and the recruitment company differ from one another in that only the employer can be responsible for the selection decision and the discrimination referred to in section 8 of the Equality Act (special prohibition on discrimination in working life) and liable to pay compensation to the discriminated person in accordance with the Equality Act.
However, the actions taken by the employer or the recruitment company used by it before the selection decision may violate the general prohibition of discrimination of the Equality Act. If the person suspecting discrimination has suffered damage, she or he may be entitled to claim compensation for it on the basis of the Tort Liability Act.

Assessment of the case

The job was held open for applications twice. The applicant A came first in the recruitment process, and the company wanted to offer her the job. After A had informed the company X and the representative of the recruitment company about her pregnancy, the job was reopened for application in a few months' time. Since the employer and the recruitment company had knowledge of the applicant's pregnancy, a suspicion of discrimination arose in the matter. The employer and the recruitment company had a burden of proof that the pregnancy did not contribute to A not being chosen to the job.

Evaluation of an acceptable reason

The company X needed to find a suitable person to the job quickly because of some urgent tasks. The company also stated that it believed that it would be possible to find another candidate for the job who would be equal or even superior to A. In its statements, the company did not refer to, for example, grounds related to A's merits or suitability or any other grounds that could be of relevance for assessing why the position had been reopened for application. This did not support the company's claim that they were in a hurry to fill the vacancy.

The fact that the job was reopened for application and another person was eventually selected to it does not affect the assessment of the previous recruitment situation. The Ombudsman for Equality considered that in this case the employer cannot clear itself of the suspicion of discrimination by referring to the better merits or suitability of the selected person in relation to A. A's pregnancy was considered to have influenced the company X's conduct of not employing A to the job. The company's conduct in recruitment had to be regarded as discrimination prohibited by the Equality Act.

On the other hand, in the light of the statement presented in the matter, the recruitment company was not considered to have discriminated against a person in violation of the Equality Act on the basis of pregnancy, because the representative of the recruitment company had not told the company X about A's pregnancy. Furthermore, the representative of the recruitment company had not urged A to inform the company about her pregnancy.

The review of evidence and the final resolution of the discrimination matter will take place in the district court if the parties are unable to settle the matter by other means.

13.05.2020