MyFondia VirtualLawyer
December 20, 2016

Discrimination in business is also prohibited

In summer 2016, a shopping centre, in partnership with the local parish, organised a wedding event, where the organisers sought to recruit a figurehead couple for the event through various media channels. The idea of the competition was to marry the winning couple in a central location at the shopping centre, and as a prize, the winning couple was promised a variety of products from the shopping centre’s stores.

Participants entered the competition through the event’s website, which included a campaign description and the rules of the competition. On the basis of their application, couple X, among others, was selected to participate in a public vote of which the winners of the wedding event were chosen.

Couple X received the most public votes and the shopping centre notified couple X of their win by phone. A little bit later, the shopping centre emailed couple X and stated that the result had been annulled, because one of the spouses was registered in the civil register and was not registered as part of a religious community in the population information system.

In Finland, members of the Lutheran church who have attended confirmation classes may get married in the Lutheran Church and have a religious ceremony. If the spouses do not profess the same religion or one of the spouses is registered to civil register, the ceremony takes place at a local magistrate and the marriage can be blessed in a church.

What do you think of the shopping centre’s policy? In your opinion, did the shopping centre have the right to annul the result of the competition because the couple could not be married in a church?

National Non-Discrimination and Equality Board’s statement

Couple X decided to file a complaint concerning the shopping centre’s decision with the National Non-Discrimination and Equality Board (hereinafter “Board”) and the Board issued a decision on the matter on 25 August 2016 (reference number:129/2016).

Couple X stated that the shopping centre had discriminated against one of the spouses based on his/her religion, as they had been denied the opportunity to participate in the wedding event because one of the spouses could not be married in a church under church policy.

The shopping centre referred to church policy in their statement and stated that it was not possible for the couple to have a church wedding. It also stated that the eligibility conditions were mentioned in the rules of the competition.

The Board concluded that the shopping centre’s policy had discriminated against the applicant because of his/her religion.

Why so?

The Non-Discrimination Act (1325/2014) contains provisions on the promotion of equal opportunities and prohibits discrimination based on age, ethnicity, nationality, language, religion, belief, opinion, health, disability, sexual orientation or other personal characteristics. The Criminal Law Act (39/1889) prohibits discrimination in employment and business, among other things.

According to section 2, subsection 1 of the Non-Discrimination Act, the Act applies to both public and private activities and therefore also to businesses. Section 10 of the Non-Discrimination Act stipulates that direct discrimination is at hand when someone has been treated, is treated or would be treated less favourably than someone else in a comparable situation because of personal characteristics.

Differential treatment is not unlawful discrimination under section 11, subsection 1 of the Non-Discrimination Act if it is based on the law and is a proportionate means of achieving a legitimate aim.

However, under subsection 2 of section 11, it is lawful to treat someone differently even when no provisions concerning justifications exist, as long as the treatment has a legitimate aim from a civil liberties and human rights point of view, or if it concerns other just, pressing societal aims. In such cases, the means required to achieve the aim must also be proportionate. For example, preventing exclusion of young people and promoting equality of linguistic minority or providing discounts for the elderly do not count in principle as discrimination, because these actions are carried out in pursuit of a legitimate aim from a basic right point of view. Legitimate aims include promoting linguistic and cultural rights, non-discrimination and equality, and the rights of children and minorities. Discrimination based on religion is explicitly prohibited under section 8 of the Non-Discrimination Act.

A person who provides services or goods must promote the equality of all service recipients and prevent their discrimination. Such a person has a right earn a living through trade under Section 18 of the Constitution of Finland. In accordance with this and the right to property protection, which is guaranteed in subsection 1 of section 15, a trader has the right to direct their services at a limited group of people in line with their business idea, provided that the treatment is a proportionate means of achieving a legitimate aim. For example, a restaurant can set age restrictions for entry without this counting as unlawful discrimination because of age, according to a Government Bill (HE 19/2014 vp s. 75).

The National Non-Discrimination and Equality Board concluded that a person who provides goods or services cannot use the rules of a religious community, including church policy, as a justification for discrimination. The Board found that the shopping centre’s policy was not a proportionate means of achieving a legitimate aim from a civil liberties and human rights point of view. The Board also noted in its decision that the marriage ceremony could have taken place as a civil ceremony. The Board concluded that the shopping centre’s policy had discriminated against the applicant because of religion and told the shopping centre not to continue or repeat such discrimination.

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As the shopping centre’s example shows, good judgement should be used when planning events. The purpose of the Non-Discrimination Act is to promote equality and prevent discrimination, as well as enhance legal protection of discrimination victims. A person who runs a business should also keep these aims in mind in their daily activities. If a policy or activities can objectively be considered as discriminatory - it usually is unlawful discrimination.