Article 14 August 2014

Is discrimination in the workplace a crime?

Traditionally, cases of discrimination in the workplace have been tackled under the Finnish Non-Discrimination Act or the Act on Equality between Women and Men. However, in recent years, an increasing number of victims have sought relief from the work discrimination provision in the Finnish Criminal Code.

If an employer discriminates, the person acting for the employer may face criminal actions, in addition to the civil actions brought against the employer.

Under this provision, a person acting as an employer or as a representative of an employer can be held criminally liable and sentenced to a fine or imprisonment of up to six months.

In most cases the criminal action starts when a person notifies the Finnish Occupational Safety and Health Administration, who examines the suspected discrimination and then requests the police to start a criminal investigation, after which the matter proceeds as a criminal case.

As a result, the action may move forward as a criminal case, regardless of any settlement between the employer and the employee.

Scope of criminal liability

Criminal liability for work discrimination may arise in cases where an employee or an applicant for a job has been put in an inferior position without an important and justifiable reason because of his/her race, national or ethnic origin, nationality, colour, language, sex, age, family status, sexual preference, inheritance, disability or state of health; or because of religion, political opinion, political or industrial activity or a comparable circumstance.

Discrimination not based on these circumstances is not work discrimination under the Criminal Code but may be assessed under the other two acts mentioned above.

Work discrimination may occur when advertising for a vacancy, selecting an employee, or during employment, as well as when terminating an employment. Therefore, it is advisable to keep in mind the employer’s obligation to treat employees equally in all actions in order to avoid an allegation of discrimination.

Appearance of work discrimination

Being placed in an “inferior position” could entail, for example, paying a smaller salary, denying participation in training events or dismissing an employee due to the aforementioned circumstances.

When assessing whether an employee has been put in inferior position, comparison must be made between the treatment of the said person and other employees employed by the same employer.

However, sometimes there is no other employee who is in a similar position or otherwise in a comparable situation as the person in question, and in such case the assessment is made on a more general level such as by taking into consideration the applicable collective bargaining agreement or the treatment of employees of other companies who are treated equally and according to the law by their employers.

What is seen as an “important and justifiable reason” depends on the specific circumstances of the case and, in practice, there have been many court cases decided by a vote due to the differing opinions of the judges regarding the interpretation of this text .

Moreover, questions have also been raised concerning the “comparable circumstance” text provided for in the provision. In practice, the application of this condition has been quite broad.

Extortionate work discrimination

Furthermore, work discrimination turns into extortionate work discrimination if an applicant for a job or an employee is placed in a considerably inferior position through the use of his/her economic or other distress, dependent position, and lack of understanding, thoughtlessness or ignorance.

Commonly, in these situations, the victims are foreign employees who are unaware of the Finnish legal safeguards. In these cases, the employer or representative can be sentenced to a fine or to imprisonment for at most two years.

What does this mean in practice?

Employers should be aware that in Finland employees and candidates for open positions can bring a work discrimination claim under both civil and criminal law.

The individuals (in practice often the CEO, HR director or other directors or managers involved in HR matters), acting as representatives of the employer, may personally face criminal liability, in addition to the employer’s possible civil liability under the Finnish Non-Discrimination Act, the Act on Equality between Women and Men or the Employment Contracts Act.

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