Equal in the eyes of the law
Have we gone too far with legislation concerning equality? Is it a case of political correctness gone mad, or is it a necessary defence against prejudice? Carol Coulter, Legal Affairs Correspondent, reports
Gays and lesbians one week, older people the next, and Travellers all the time: it seems the Equality Authority is always banging on about someone, urging Irish people to walk the straight and narrow path of non-discrimination. Is this political correctness gone mad, or a necessary antidote to widespread prejudice in Irish society?
There is no doubt that such prejudice exists. Maynooth sociologist Father Micheál McGreil, in his authoritative work, Prejudice in Ireland Revisited, where he revisits the subject 20 years after his first, magisterial, study of the issue, Prejudice and Tolerance in Ireland, found that about 70 per cent of people would not accept a black, Indian or Chinese person into their families, 86 per cent would not admit a Traveller, and 87 per cent would reject a gay person. Smaller, but still significant, percentages would even deny them Irish citizenship.
The reasons are based on popular perceptions of such people, he said. "These perceptions have their basis in popular stereotypes, actual or vicarious experience, or prevalent myths about the people in question," he wrote. He went on to show in some detail how such entrenched attitudes have served to isolate and discriminate against tens of thousands of people living among us.
In 1998 the then government, the Rainbow Coalition, introduced anti-discriminatory legislation to protect people under nine headings where patterns of discrimination had been identified. It replaced existing legislation outlawing discrimination on the grounds of sex or marital status.
The two Acts were the Equal Employment Act, covering discrimination in all areas of employment, including promotion, and the Equal Status Act, which covered discrimination in the provision of services, including education and access to services from the State. The nine grounds are gender, marital status, family status, sexual orientation, religion, race, age, disability and membership of the travelling community.
Two bodies were established to help implement this legislation. The Equality Authority, headed by Niall Crowley, replaces the previous Employment Equality Agency, which dealt primarily with discrimination against women. It is an educational, advisory and lobbying body, which conducts research, draws up reports and makes recommendations to Government and other relevant bodies. It is also an advocacy organisation, and can take complaints on the part of individuals to the Director of Equality Investigations.
The Director of Equality Investigations is Melanie Pine, and her office is next door to that of the Equality Authority, though the two bodies are distinct and serve different purposes. Effectively an Equality Tribunal, it conducts investigations and has the power to impose judgments, including financial compensation, if one of its equality officers finds that a complainant suffered discrimination. Its decisions are legally binding unless appealed. Equal status decisions can be appealed to the Circuit Court, and employment decisions to the Labour Court.
Under the equal employment legislation allegations of discrimination on gender grounds still form the largest category of complaints, accounting for 60 per cent of the total last year. About a third of these cases are pregnancy related, although discrimination against pregnant women has been illegal since 1994.
Most of the complaints under the equal status legislation have been made by members of the Travelling community. Last year they accounted for almost 80 per cent of all complaints, and this year the figure is running at 89 per cent, with about 100 being received by the office every week.
Typically they have involved refusal of service in pubs. It is this aspect of the legislation that faces most sustained criticism.
By no means are all complaints upheld. On the employment side, the decisions for and against the complainant are roughly 50/50, which, according to Pine, is similar to the figures in Britain. Of the equal status cases decided in the first months of 2002, 46 were decided in favour of the complainant and 30 were decided aganst. All but six concerned Travellers.
A good insight into the workings of the Equal Status Act is provided by 28 cases taken recently arising out of a series of incidents on one night in Kilkenny, when a group of four Traveller women went out for an evening in the presence of a teacher working with the travelling community. They sought service in eight public houses, and received it in only one. They took actions under the Act against the other seven.
THEIR cases were upheld against four premises, and they lost the cases against three, where the equality officer found that no prima facie case of discrimination existed. Here the equality officer accepted that in one case the women were refused because one of their number had been barred previously; in another they did not meet the dress code required for admission; and in a third they did not have the ID required of all but regular patrons.
Another case that hit the headlines involved Ryanair, where the airline was found guilty of discriminating on age grounds in its advertising for staff.
The recent report from the Equality Authority on gay and lesbian rights has also provoked controversy. While the main recommendation here was for partnership rights, where gays and lesbians could nominate their partners as next of kin and as heirs, the recommendation that they be allowed to adopt and foster children have prompted some to inquire whether the equality legislation, and the measures used to implement it, have gone too far.
Some of the comment suggests misconceptions about what the legislation, along with case-law from the Office of the Director of Equality Investigations and recommendations from the Equality Authority, actually say. None of them suggests that Travellers, gay people or any of the other categories mentioned in the legislation have any special privileges unavailable to other people. In relation to gay adoption, for example, it is only likely to be an issue where the child already has a blood relationship with one of the parties. The gay orientation of a parent has been a basis to deny that parent custody of his or her child in the UK.
Nor is it suggested that merit cannot, and should not, be the criterion for offering employment and promotion. Equally, there is nothing in the legislation or the case-law to prevent service-providers, be they publicans, land-lords or government agencies, from protecting themselves against anti-social behaviour. What it does do is prevent people acting on the basis of assumptions about groups of people without testing those assumptions.
However, there will always be some who remain convinced that the legislation is unnecessary, and that refusing accommodation to African or Asian people, or refusing to employ a Traveller girl as a house-maid in a hotel, has nothing to do with issues such as the killing of a young Chinese boy in Dublin last year or the early mortality of the travelling community.