LGBTQI+ in the workplace – Diversity, equality and inclusion versus employee privacy
A global trend in raising awareness about diversity, equality and inclusion includes a desire by employers to map diversity among their employees. In the Nordics, and especially in Finland, the privacy laws are such that employers are not allowed to inquire about their employees’ private lives. DE&I mapping tools may also be seen as “foreign” from a cultural perspective and responding to surveys should be voluntary for employees.
Information about employees’ ethnic or racial background, sexual orientation, health-related issues, or other similar personal information is considered sensitive personal data. Inquiring about these personal details is generally prohibited under Finnish employee privacy legislation and the GDPR. This also applies to data that indirectly or only together with other information identifies an individual. For employers, it can be challenging to determine the way forward and meet the demands from the global business collective while adhering to Finnish privacy laws.
There is no local legislation in Finland specifically requiring the collection of this kind of data for DE&I monitoring purposes. That means that no mapping at all of employees’ DE&I status is allowed, unless the system for gathering information is completely anonymous. However, in smaller corporations in particular, it may be virtually impossible to keep the information totally anonymous.
From a Nordic perspective, we may ask ourselves whether it is necessary – or appropriate – to ask employees to respond to questionnaires which would require them to reveal their sexual orientation, ethnic background, or similar information. But the global trends also reach our market, which means that the standpoint of politicians and legislators may change. So far, we have not seen any discussion about the need for possible additional legislation in relation to the employer’s right – or obligation – to monitor diversity in the workplace.
There is some interest in the Finnish market since many Finnish companies conduct business with global corporations, which may require reporting of DE&I-related KPIs as a condition for co-operation. Finnish companies that operate globally may also have a need to understand the diversity of their workforce. Information on DE&I issues may be relevant, for example, in sustainability strategies and reporting, recruitment materials as well as in procurement processes, where prospective customers or clients list DE&I -related matters as criteria in their selection process.
Under Finnish law – and practice – the general rule is that an employee’s sexual orientation, ethnic background or other sensitive personal information is not relevant information at all in an employment relationship. There are some exceptions, for example regarding discrimination investigations, where there may be reason for collecting some data but only for the purposes of the investigation. In addition, information on disability may be processed for occupational health care-related reasons or when adjusting the work environment to accommodate disability at the workplace.
In light of the above, we encourage companies to carefully consider these and related cultural aspects when working with Finnish employees, and to make sure that no privacy violations occur. We would like to stress the importance of fostering an overall inclusive and open work culture, in which every employee feels accepted and included.
We are happy to assist with the appropriate way forward in DE&I monitoring, inquiries and related communications.