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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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7. Role of equality bodies In addition to monitoring the application of the Gender Equality Act, the Centre for Gender Equality supervises educational and informational activities and makes suggestions and proposals to the Minister of Social Affairs and other government authorities regarding measures to achieve gender equality. As is usually the case, the creativity of and initiatives taken by institutions like the Centre for Gender Equality, an institution under the control of the Government, depend on the people running such bodies. Research may go unnoticed and conferences may not attract the attention needed to create social response and legislative developments. In my view, it is essential for bodies such as the Centre for Gender Equality to maintain a high profile in the media, in order to call attention to various problems such as multiple discrimination. Taking an active stance with immediate analysis when cases/situations occur that reflect the worst sides of multiple discrimination ought to be the task of equality bodies, as nothing grasps public attention to societal problems as much as shocking news stories do.

The Centre for Gender Equality and other local bodies have recently applied for funding from the EU PROGRESS programme in the area of employment and social affairs. The aim is to prepare an educational programme for immigrant women. If this project goes through, it will be the first activity by the Centre potentially encompassing aspects of multiple discrimination.

70 Multiple Discrimination in EU Law

8. Reinforcement of legal approach at EU level necessary?

Reinforcement at EU level might best be served by encouraging discussion on understanding human rights in a wider context, taking into account that in order to enjoy civil and political rights one first needs economic and social rights. A contextualized approach will place less emphasis on the discriminatory ground itself and more on the overall response from society. An analysis of discrimination that takes into account the actual realities of people’s lives and social context of discrimination may be a much more effective method to reinforce equality in general than even more complex legislation. The aim should be to fully realize a contextual approach to discrimination that includes multiple and intersecting grounds.

9. Community-law definition of ‘multiple discrimination’ necessary?

A Community-law definition is not necessarily required. It may constitute a limitation or restriction to the complex reality of multiple discrimination, if the objective is to minimize the legislative hurdles created by separate non-discrimination statutes. A more fundamental re-conceptualization of what constitutes discrimination may better serve the objective of equality.

10. Available literature or research?

A recent survey has been conducted on prejudice, but the results have not been published yet.65 There are no articles in Icelandic legal journals on the topic of multiple discrimination.

An Icelandic author who has addressed the issue is Professor Rannveig Traustadóttir, department of social sciences, University of Iceland. She has discussed various aspects of discrimination and social exclusion, disability etc.

11. Further research What is necessary is a more fundamental re-conceptualization of what constitutes discrimination. The vulnerability of individuals facing multiple discrimination is caused by the instability of their economic, social and even political position.

Therefore, it seems essential to expose human rights abuses of women vulnerable to multiple forms of discrimination in order to promote legal reform.

IRELAND – Frances Meenan

1. Concept of multiple discrimination in legislation The Employment Equality Act 1998 prohibits discrimination on nine separate grounds, namely gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community.66 This Act was amended by the Equal Status Act 2000, the Equality Act 2004, and the Civil Law (Miscellaneous Provisions) Act 2008.67 These Acts apply only to discrimination in relation to employment, vocational training, access to employment and pay and conditions of employment. This Act, which repealed earlier legislation, transposes Council Directive 75/117/EEC, Council Directive 76/207/EEC, Council Directive Information from the Director of the Multicultural Centre in Reykjavík.

The community of people commonly so called, who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland.

Employment Equality Acts 1998 – 2008.

Multiple Discrimination in EU Law 71 97/80/EC, Council Directive 2000/43/EC, Council Directive 2000/78/EC and Council Directive 2002/73/EC. The 1998 Act was structured in order to give more importance to the gender ground with general provisions prohibiting discrimination, but also two specific parts: Part III stipulating specific provisions as to equality between men and women, and Part IV stipulating specific provisions as to equality between other categories of persons.

The Pensions Acts 1990 to 2004 prohibit discrimination in respect of access to pension schemes etc., and the Equal Status Acts 2000 to 2008 prohibit discrimination in respect of the provision of goods and services on the same nine grounds.68 ‘Multiple discrimination’ is not defined in Irish legislation. The legislation provides in practice that a person who claims discrimination on a certain ground must compare their difference with that of somebody else on the same ground, e.g. two persons of the opposite sex, so that one is a man and the other is a woman, or for example on the marital status ground, where two persons have a different marital status. There is no ‘compound’ discrimination where each ground adds to another ground. Each ground is a separate case which must be pleaded and defended; the grounds cannot be looked at collectively.

It must be noted that the concept of multiple discrimination or multiple grounds of discrimination are considered on a ‘ground by ground’ basis. This approach has been in operation for nearly ten years in Ireland.69 The term ‘intersectionality’ should perhaps be considered so that there is a clearer understanding of the term multiple discrimination.70 The fact that grounds of discrimination are not mutually exclusive is also important. Harvey on Industrial Relations and Employment Law71 states that ‘A single act may give rise to more than one wrong’. The approach in Ireland, however, is to initiate proceedings under each ground and plead it separately. Recent statistics

about such numbers of claims are as follows:

Referrals on multiple grounds before the Equality Tribunal:72 67 cases in 2003;

71 cases in 2004; 95 cases in 2005; 98 cases in 2006 and 113 cases in 2007.73 Appeals from the Equality Tribunal before the Labour Court: 8 cases in 2005 and 10 cases in 2006. The 2007 Annual Report does not state the number of cases with multiple grounds, but does state that a number of cases had one or more ground.74

2. Case law When a prospective claimant is bringing proceedings before the Equality Tribunal75 they complete a Claim Form (Form EE.1), and in Part 3 of that form prospective claimants are asked to ‘tick box (yes) as appropriate’ and then all the nine grounds are set out. Accordingly, a person specifically claims under one ground and/or any other All Irish legislation is available at www.irishstatutebook.ie, accessed 20 April 2009.

For example see Doyle v Jury’s Doyle Hotel DEC-P2009 – 001, where the issue of access to pension schemes for a long-serving part-time female employee was considered separately on the gender ground and on the age ground. There had been an earlier prohibition on part-time employees joining the scheme.

Equality Law in an Enlarged European Union – Understanding the Article 13 Directives, p. 5, Helen Meenan (ed.), Cambridge University Press 2007.

Division L, Equal Opportunities 6, LexisNexis.

Gender-related claims may be referred to the Circuit Court. Such figures are not available, as they are lodged in the court offices throughout the country. The numbers are very small, however.

Source Annual Reports; www.equalitytribunal.ie, accessed 24 February 2009.

Source Annual Reports; www.labourcourt.ie, accessed 24 February 2009.

Cases are referred to the Equality Tribunal where by agreement the parties may go to mediation. If mediation fails or if the parties do not wish to go to mediation, the claim is assigned to an equality officer for investigation; www.equalitytribunal.ie 72 Multiple Discrimination in EU Law ground. Of course, they must set out particulars of each and every ground that they are claiming under.

On reference to the Equality Tribunal, the complaint is investigated on each and every ground. In respect of each ground there must be a prima facie case and each ground is investigated separately. Inevitably, there may be cases where either party is not satisfied with the investigation and/or decision of the Equality Tribunal or the Labour Court, but this does not affect the statutory provision that each and every ground must be considered separately.

3. Any cases where gender-related discrimination is overlooked?

If there is a specific complaint on the gender ground, such complaint must be investigated separately as is the case for each and every ground of alleged discrimination. It is important to note that unless a claim on the gender ground is initiated there cannot be an investigation on the gender ground.

4. Proof and procedural problems If facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination, it is for the respondent to prove to the contrary.76 In a case where there are a number of cases of alleged discrimination, the claimant will have to initially show a prima facie case of discrimination and then the burden of proof will shift to the respondent. Proofs required to establish a prima facie case were dealt with in Lawless v Eurozone Investment Options Ltd77 where the claimant claimed on the grounds of gender, marital status and family status in relation to dismissal. The respondent denied the claimant’s allegation of discrimination and submitted that her employment was terminated in circumstances where the sales jobs undertaken by the claimant and others were being outsourced because the respondent’s Managing Director wished to reduce his workload. The Equality Tribunal stated that the claimant in order to satisfy the burden of proof must prove the primary facts on which she relied to raise a presumption of unlawful discrimination.

The facts as established would have to have raised a presumption of unlawful discrimination and a presumption that she was less favourably treated than a male and/or that she was less favourably treated than someone with a different family status in relation to the dismissal. As the equality officer considered that the claimant had failed to satisfy the burden of proof, she had therefore failed to establish a prima facie case and the burden of proof therefore did not shift to the respondent.

In another case, the Labour Court on appeal overturned one particular recommendation where it considered that an equality officer dealt with the three grounds of discrimination of marital status, family status and age as one issue. The equality officer’s recommendation did not show how the claimant was directly discriminated on each of the grounds.78

5. Description of a specific case The recommendation in the case of Doyle v Jury’s Doyle Hotel79 concerns a claim that the employer indirectly discriminated against the complainant on the grounds of her gender and age contrary to Section 66(2) of the Pensions Acts 1990 to 2008 in not giving her access to her employer’s pension scheme pursuant to Section 70 of the Act.

Section 85A of the 1998 Act and see also Southern Health Board v Mitchell [2001] ELR 201.

E2007 – 010.

Freeman v Superquinn DEC-E/2002/13; www.labourcourt.ie, accessed 24 February 2009.

DEC- P2009 – 001 and available at www.equalitytribunal.ie, accessed 30 March 2009.

Multiple Discrimination in EU Law 73 The complainant commenced employment with the respondent in 1975 as a member of the banqueting staff, together with a group of other female employees with varied hours of work. In time they were called ‘permanent casual staff’. In 1995 she enquired about joining the pension scheme, but was not allowed as she was not a permanent full-time employee. However, she was allowed to join the respondent’s scheme for Additional Voluntary Contributions (a separate private scheme80) in 2002. In the year 2000, she enquired again about joining the pension scheme and was told that even though her category of employee was now allowed to join the main scheme, she could not because she was over 50 years of age. At this time, there was one woman in her group of employees who was below 50. She maintained that she was indirectly discriminated against. The issue for decision before the Equality Tribunal was the question whether she was discriminated against on the basis of gender or age. Two issues arise in determining whether the complainant was subjected to indirect discrimination on grounds of gender, namely which group of employees constitutes her comparator group and what is a ‘particular disadvantage’. It was held that the group should be all part-time staff employed by the respondent at the material time, as all these employees were barred from joining the scheme. In percentages, 42.8 percent of part-time workers were male and 57.2 percent were female; thus a differential of

14.4 percent. It was considered that this differential did not establish a ‘particular disadvantage’ for the complainant. The Equality Tribunal considered that it would only take a small number of jobs to be staffed by men instead of women to achieve a parity of genders. This could easily happen with normal fluctuations as permanent part-time staff were employed throughout the hotel’s operations. Thus, it was held that there was not a prima face case based on gender. The Equality Tribunal noted that part-time employees as a group may have been discriminated against but that it was not because of their gender.

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