The definition of discrimination

• Author: Hiltunen, Rainer
• Pages: 16-25

16

2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The grounds of discrimination explicitly prohibited in the main legislation transposing and

implementing the directives (as listed in the Introduction, above) are: origin, age,

disability, religion, belief, sexual orientation, nationality, language, opinion, political

activity, trade union activity, family relationships, state of health or other personal

characteristics.

2.1.1 Definition of the grounds of unlawful discrimination within the directives

Section 8 of the Non-Discrimination Act lists the grounds of discrimination but does not

define them in the text of the statute. This is due to two reasons. First, and most

importantly, discrimination is prohibited by an open-ended list of grounds, first listing 13

grounds explicitly (origin, age, disability, religion or belief, sexual orientation, nationality,

language, opinion, political activity, trade union activity, family relationships, state of

health) and then referring to ‘other personal characteristics’ as prohibited grounds of

discrimination. Therefore, it is not crucial to define the prohibited grounds of

discrimination in a precise way as any ‘personal characteristic’ should cover the situation.

Secondly, the Government proposal23 (pertinent preparatory works or travaux

préparatoires) for the Non-Discrimination Act defines the grounds for discrimination

referring to the recent case law of the Court of Justice of the European Union (CJEU) and

European Court of Human Rights (ECtHR).24

The Government proposal explains that there is no change in the definitions of the

grounds of unlawful discrimination between the repealed Non-Discrimination Act and the

Non-Discrimination Act, which came into force from 2015. There is no case law on

applying the repealed act to indicate that the definitions of the grounds protected in the

Racial Equality Directive and the Employment Equality Directive would have a narrower

interpretation in the new act than in the directives.

a) Racial or ethnic origin

The term for ethnic origin in the repealed Non-Discrimination Act was ‘ethnic or national

origin’. This term has been replaced in the current Non-Discrimination Act by the word

‘origin’. It is defined in the Government proposal as including ethnic origin, national

origin, social origin,25 race and colour of skin.26 There is no doubt that the concepts of

race and ethnic origin are to be interpreted as being included in the concept of origin as

used in the Non-Discrimination Act.

b) Religion and belief

On the definition of religion and belief, the Government proposal explains only that the

difference between these two is not always easy to distinguish, although belief is

connected more to conviction than to religion. It is further defined that the belief

protected in the Non-Discrimination Act is required to be permanent to a certain extent.27

23 Government proposal on the Non-Discrimination Act 19/2014 (Hallituksen esitys yhdenvertaisuuslaiksi

19/2014 vp), pp. 66-68, http://www.finlex.fi/fi/esitykset/he/2014/20140019.

24 The Government proposal refers to the CJEU decision of HK Danmark (C-335/11 and C-337/11, 11.4.2013)

when explaining the relationship between state of health and disability, and to the ECtHR decision in Hode

and Abdi (6.12.2012) when explaining the concept of ‘other personal characteristics’.

25 The term ‘social origin’ (yhteiskunnallinen alkuperä) is also used in the Government proposition for the

Constitution (HE309/1993). The proposition for the Constitution uses the term with reference to the

International Covenant on Civil and Political Rights, which uses ‘social origin’ in Article 2.

26 Government proposal on the Non-Discrimination Act, 19/2014, p. 66.

27 Government proposal on the Non-Discrimination Act, 19/2014, p. 66.