Grounds For Discrimination to Increase to 10

The Oireachtas has moved to make amendments to existing Equality Legislation by introducing the Employment Equality (Amendment) Bill 2013.

The purpose of the amendments is to extend the general definition of discrimination to include discrimination on the grounds of gender identity, as well as to extend general protection against discrimination on the basis of civil status, gender identity or sexual orientation in, and in connection with, employment, vocational training and membership of certain bodies.

Updated Definitions

The Bill also looks to amend the definitions, covered in Section 2(1) of the Employment Equality Act, 1998, 2004, of “Civil Status” (as amended by the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) and introduces a definition for “Gender Identity” as below;

• “civil status” means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved or being or having been a cohabitant or qualified cohabitant within the meaning of Section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.
•  “Gender identity” means each persons deeply felt internal and individual experience of gender, which may or may not correspond with sex assigned at birth, including the person’s sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other experiences of gender, including dress, speech and mannerism

Increase from 9 to 10

There will also be an increase in the grounds for discrimination (currently 9) as laid out in Section 6 of the Employment Equality Act, 1998, to include

•  (j) that one is a person whose gender identity differs to that of the legal gender status of the person

Exclusions from Discrimination

The final amendment to the Act deals with a controversial piece of the legislation which is Section 37 of the current Employment Equality Act, which deals with the exclusion of discrimination on particular grounds in certain employments.

The amendments proposed are to amend Section 37 to insert the following after subsection (6):

• (7) Nothing in subsection (1) may be relied upon by an institution referred to in subsection (1) to justify or permit any form of discrimination as defined in subsection (1) to justify or permit any form of discrimination as defined in section 6(2) or to allow any action to be taken against any employee or potential employee on the basis that employee’s or potential employee’s gender identity, civil status, or sexual orientation.
• (8) Nothing in subsection (1) may be relied upon by an institution referred to in subsection (1) to justify more favourable treatment of or in respect of one employee or potential employee over another employee on the basis of his or her civil status, gender identity or sexual orientation.

Currently in rare circumstances it is permitted for a religious, educational or medical institution t to discriminate for a religious purpose, where it is reasonable to do so.

This is normally used to maintain the religious ethos of the institution or where it is reasonably necessary to in order to avoid the undermining of that ethos. It is generally understood that perhaps a school with a particular religious ethos could decline to employ a homosexual teacher, or as in the case of Flynn v Power an unmarried teacher was working in a convent and dismissed soon after becoming pregnant by her married partner. The court held that it was reasonably necessary to dismiss a teacher who was openly having a relationship with a married person in order to prevent the undermining of the religious ethos of the school.

The proposals outlined in the Bill would provide that this cannot be relied upon by religious, medical or educational institutions to justify discriminatory treatment or allow any action to be taken on the basis of the employee or a potential employee’s gender identity, civil status or sexual orientation. Equally the new subsection 8 will ensure that the above institutions cannot justify more favourable treatment in respect of one employee or a potential employee over another employee on the basis of their civil status. gender identity or sexual orientation.

This Bill was just published on the 21st February and is currently making tis way through the Oireachtas, we will keep a close eye on any amendments to the Bill as it goes through the floor of the Dail and the Seanad.

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