Irish AntiDiscrimination Law

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Irish Anti-Discrimination Law

• ByShivaun Quinlivan

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Relevant Acts

• Employment Equality Act 1998
• Equal Status Act 2000
• Equality Act 2004
• Employment Equality Act 1998-2004
• Equal Status Act 2000-2004

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Defining Disability

• the total or partial absence
• the presence in the body of organisms
• the malfunction, malformation
• a condition or malfunction which results in a
  person learning differently
• a condition, illness or disease affecting thought
  processes

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Disability Definition continued

• Includes present, past, imputed and future
  disabilities
• EEA amended to include discrimination by
  association
• Multiple discrimination

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Definition cases

• Mr. O v. A Named Company - does not have to be a
  work related disability.
• A Complainant v. Café Kylemore - alcoholism
  including recovering alcoholics are covered.
• Customer Perception Ltd. v. Leydon - temporary
  disabilities covered.
• Six Complainants v. a Public House, -
  discrimiantion by association.
• Two Complainants v. A Primary School - illiteracy
  is not a disability
• Health Service Employee v. The Health Service
  Executive, - imputed disability
• Mulitple discrimination

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Scope of the EEA

• Access to employment
• Conditions of employment
• Training or experience for or in relation to
  employment
• Promotion, re-grading or classification of posts
• Vocational training
• Advertising
• Collective agreements
• Employment Agencies
• Equality Clause

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Scope of the ESA

• The provision of goods and services to the public
• Disposal of premises and the provision of
  accommodation
• Educational establishments.
• Clubs (Portmarnock Case)
• Intoxicating Liquor Act 2003

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The Acts

• Prohibit
• Direct Discrimination
• Indirect Discrimination
• Harassment
• Victimisation Procurement of Discrimination
• Require
• Reasonable Accommodation
• Permit
• Positive Action

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Direct Discrimination

• Where a person within one of the grounds is
  treated less favourably than another is, has been
  or would be treated.
• Issues
• Similarly situated - Schumacker and Gillespie
• Burden of Proof Flexco and Scruffys Bar
• Who may be a comparator
• Person with a different disability
• Person with no disability
• Hypothetical person
• Intention to discriminate

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Indirect Discrimination

• Three definitions of indirect discrimination
• Pay related S29 EEA
• Non-Pay related S31 EEA
• Equal Status provision S3 ESA
• Indirect discrimination is deemed to occur where
  an apparently neutral provision puts a person
  belonging to a particular discriminatory ground
  at a particular disadvantage compared with
  other employees of their . The test to justify
  indirect discrimination is that the
  discriminatory provision must be objectively
  justified by a legitimate aim and the means of
  achieving the aim are appropriate and necessary.
  

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Constitutional Difficulties

• Re the Employment Equality Bill 1996, 1997 2
  I.R. 321, and Re the Equal Status Bill 1996
  1997 2 IR 387
• Provision on reasonable accommodation
  unconstitutional
• Court recognised the laudable aim of making
  provision for such of our fellow citizens as are
  disabled
• Equality v. Private Property Rights

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Divergence in measures

• Employment Equality Act 1998-2004 new improved
  provision on reasonable accommodation as a result
  of General Framework Directive
• Equal Status Act 2000-2004 retains the old and
  restrictive definition of reasonable
  accommodation because of the constitutional
  problems and the narrow scope of the General
  Framework Directive

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Reasonable Accommodation - EEA

• For the purposes of this Act a person who has a
  disability is fully competent to undertake, and
  fully capable of undertaking, any duties if the
  person would be so fully competent and capable on
  appropriate measures being taken by the persons
  employer.
• Appropriate measures should be taken to enable
  access to employment participation or advancement
  in employment accessing of training.
• unless the measures would impose a
  disproportionate burden on the employer.

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Disproportionate Burden

• Account may be taken of
• the financial and other costs entailed
• the scale and financial resources of the employer
• the number of persons who would benefit
• any disruption that would be caused by them
• the nature of any benefit or detriment
• the possibility of obtaining public funding
• any benefit that would accrue to the employer

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Appropriate Measures

• effective and practical measures, to adapt the
  employers place of business
• Can involve adaptation of
• Premises
• equipment
• patterns of working time
• distribution of tasks
• provision of training or integration resources
• does not include any treatment, facility or thing
  that the person might ordinarily or reasonably
  provide for himself or herself.

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RA - prior to amendment

• No requirement to recruit or promote, retain a
  person in a position where
• Person wont undertake the duties
• Not capable of undertaking the duties
• A person with a disability shall be regarded as
  capable and competent if with special treatment
  or facilities they would be
• Employer obligated to provide reasonable
  accommodation
• Failure to provide reasonable accommodation is
  not reasonable unless it gives rise to more than
  a nominal cost.

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Reasonable Accommodation - EEA

• Pre-Employment - Harrington v. East Coast Area
  Health Board, - necessity for accessible
  interview venues
• Essential Functions - A Computer Component
  Company v. A Worker, - arrangements may be made
  in respect of minor functions of a job
• Nominal Cost Broadly interpreted
• An Employee v. A Local Authority
• A Motor Co. v. a Worker,
• Mr. C v. Iarnród Éireann

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Reasonable Accommodation EEA Contd

• Medical evidence - Health and Fitness Club v. A
  Worker - employers obligation to get
  information, and complainant involvement
• Provision of Equipment - A Motor Co. v. a Worker
  Must be appropriate equipment
• Training - An Employee v. A Local Authority
  provision of a job coach for three months
• Dismissal A Company v. A Worker, - dismissal
  without considering any form of reasonable
  accommodation

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Reasonable Accommodation - ESA

• For the purposes of this Act discrimination
  includes a refusal or failure by the provider of
  a service to do all that is reasonable to
  accommodate the needs of a person with a
  disability by providing special treatment or
  facilities if without such special treatment or
  facilities it would be impossible or unduly
  difficult for the person to avail himself or
  herself of the service.
• A refusal or failure to provide the special
  treatment or facilities in question shall not be
  deemed reasonable unless such provision would
  give rise to a cost, other than a nominal cost,
  to the provider of the service in question.

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Reasonable Accommodation ESA

• Access to Premises
• Roche v. Alabaster Associates Limited t/a
  Madigans, - refusal of access to guide dog
• Forrestal v. Hearns Hotel, Clonmel, - refusal of
  access to wheelchair user
• Six Complainants v. a Public House refusal of
  access to person with a disability and those
  associated with him

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Harassment

• Harassment is conduct which has the purpose or
  effect of violating a persons dignity and
  creating an intimidating, hostile, degrading,
  humiliating or offensive environment for the
  person.
• Harassment is unwanted conduct which may consist
  of
• acts,
• requests,
• spoken words,
• Gestures
• The production or display or circulation of
  written words, pictures or other material.

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Harassment contd

• Harassment can be perpetrated by
• Colleague
• Employer
• Client, customer or other business contact
• Statutory Defence
• Took reasonable steps
• Suggests a process or policy is necessary

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Victimisation

• Requires
• Dismissal
• Adverse Treatment

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Who is covered

• Complainant
• Litigant
• Assisting a Litigant
• Comparator
• Witness
• Prospective Litigant
• Opposing Discrimination (Lawfully)

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Case Law - Ireland

• Salmon v. Para Equestrian Ireland
• that the complainant has in good faith taken any
  of the actions
• that the respondent has treated the complainant
  in a particular way as a result of that action
• that the treatment is less favourable
• Then the burden of proof shifts

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A Complainant v. A Department Store

• in view of the untrue and unfounded allegations
  you have made to the Employment Equality
  Authority we are not for the foreseeable future
  going to accept any application from you for
  employment in our store, or indeed any other
  branch.
• Victimisation occurred awarded 12,700.

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Dublin City Council v. McCarthy

• the victimisation of a person for having in good
  faith taken a claim under the equality
  legislation is very serious, as it could have the
  effect of undermining the effectiveness of the
  legislation.
• Awarded - 25,000.

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Bleach v. Our Lady Immaculate Senior School

• 1st Interview for a promotion challenged
• This challenge was successful
• Required to re-hold interview
• 2nd interview
• Asked during the interview is this a fair
  interview?
• Chairperson of second interview was also a member
  of the first interview panel.
• Award
• She refused compensation
• She had to be appointed to the position with pay
  backdated.

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Positive Action

• Both of the Equality Acts are permissive of
  positive Action.
• Section 33 EEA
• Section 14 ESA

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Exceptions - EEA

• genuine and determining occupational requirement
• Defence Forces
• Limitations in respect of the Garda Síochána,
  prison service or any of the emergency services
• Provision of personal services
• Section 35 permissive of differential pay rates

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Exceptions - ESA

• Section 14
• Pensions, annuities, insurance policies -
  actuarial data
• Sporting events
• Entertainment authenticity
• Section 15
• Certain exceptions re aircraft
• Educational Establishments
• Sporting events
• Disability Exception
• Preferential fees
• Genuine and determining occupational requirement

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Remedies

• Compensation
• Orders for employers to take specific courses of
  action,
• Re-instatement
• Re-engagement.
• Issues
• Equality Authority
• Effective, proportionate and dissuasive

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Remedies ESA

• Compensation
• Order a Course of Action
• Issues
• Enforcement of orders
• Amount of awards

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Web pages

• Equality Authority www.equality.ie
• Equality Tribunal www.equalitytribunal.ie