Do we need data to promote diversity and equality?

Diversity and equality in work communities enrich working life and enable companies to grow and innovate. Many employers have undertaken to promote equality, which is after all their legal responsibility. However, legislation also limits how employers can go about this, as they cannot collect whatever data they want concerning their employees.

The Non-discrimination Act obligates employers of all sizes to promote equality in the workplace. For example, employers must develop their methods of choosing employees and ways of making decisions that concern employees. The measures taken to promote equality must be effective, appropriate and proportionate.

As all development efforts, promoting diversity and equality must be based on information. In order to improve the rights of a particular group, the employer needs to know how many people in the work community belong to this group and how they feel their rights are being realised. However, these good intentions may be in conflict with data protection legislation.

In Finland, the processing of personal data is regulated in particular by the EU’s GDPR, the Finnish Data Protection Act and the Act on the Protection of Privacy in Working Life which require that there are appropriate grounds for collecting personal data. The employer may only collect data that is necessary for the employment relationship or if an obligation to collect data is specifically provided for in law. An obligation that is general in nature – promoting equality, for example – does not, as such, give employers more powers as regards collecting data.

Moreover, data that is important with respect to equality is often sensitive personal data, i.e. special categories of personal data which are strictly protected by the law. For example, processing data on a person’s health, origin or sexual orientation is generally prohibited. This applies even if the employee consents to the processing of the data.

Nevertheless, information on diversity in the work community would help the employer plan effective and appropriate measures to promote equality. Untargeted measures may be ineffective: while they might help some people, they are not specifically targeted at any particular group.

Anonymous data can be collected, but anonymity depends on the work community

Data protection laws do not apply to anonymous data, but that does not mean that an employer can ask their employees to anonymously answer any and all questions in order to promote equality. 

Anonymising data does not mean hiding the names of individuals but presenting the data in a manner by which the individuals cannot be identified. Nameless data is not anonymous if it defines the object too narrowly. For example, ‘male, aged 50–55, native language other than Finnish’ might be sufficient to identify the employee in some work communities. Even keeping score of employee groups on paper might be too specific.

Statistics are typically anonymous. The law does not determine the minimum number of observations, but a general rule of thumb, which is not based on regulation, is five observations or units of data. For example, team-specific results are often not reported in personnel surveys if the team consists of fewer than five employees.

Therefore, the possibilities for data collection depend on the work community and the aspect under examination. In a larger organisation, it may be possible to collect statistics on various aspects of diversity. Even in work communities of a few dozen people there are enough persons identifying as men and women to collect anonymous data based on gender.

Building trust is always worth it

While data collecting is very restricted, often the most important factor of promoting equality is an atmosphere of openness and trust. Employees should feel that they are welcome and valued regardless of whether or not their characteristics position them as members of the majority. Such an atmosphere also fosters better results and is therefore a positive driver for the employer’s business as well.