Discrimination occurs where one person is treated less favourably than another. In Ireland, legal protection from discrimination can be found in the Constitution, domestic statutes, under EU law and international human rights instruments. Article 40.1 of the Irish Constitution guarantees equality before the law and legislation protects us from discrimination in the workplace and in the receipt of services.
What is Discrimination?
Discrimination is where a person or group is treated less favourably than another person or group. Discrimination can be either direct or indirect.
To establish direct discrimination, a direct comparison must be made, for example, in the case of disability discrimination the comparison must be between a person who has a disability and another who has not, or between persons with different disabilities.
Indirect discrimination occurs when practices or policies that do not appear to discriminate against one group more than another actually have a discriminatory impact.
Legislation in Ireland Protecting People from Discrimination
The Employment Equality Acts (EEA) 1998-2004 and the Equal Status Acts (ESA) 2000-2004 are the principal pieces of anti-discrimination law in Ireland. Under this legislation it is unlawful to discrimination against a person on the following grounds:
• Civil status
• Family status
• Sexual orientation
• Age (does not apply to a person under 16)
• Membership of the Traveller community
Since 1 January 2016, under the Equal Status Acts 2000–2015, you cannot be discriminated against when renting because you are getting Rent Supplement or any other social welfare payment, or a Housing Assistance Payment. This is known as the housing assistance ground.
Discrimination in the Workplace
Workers are protected against discrimination by maternity acts and the Employment Equality Acts 1998-2015 (EEAs).
The EEAs place an obligation on all employers to prevent harassment in the workplace. This includes sexual harassment and harassment on any of the following grounds – civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community – are forms of discrimination in relation to conditions of employment.
Discrimination by Service Providers (Public & Private)
The Equal Status Acts 2000-2015 (‘ESAs”) prohibit discrimination in the provision of goods and services, accommodation and education. They cover the nine grounds of gender, marital status, family status, age disability, sexual orientation, race, religion, and membership of the Traveller Community or on the housing assistance ground (in cases concerning accommodation only). Discriminatory advertising is also prohibited.
The Acts prohibit discrimination subject to some exemptions, in access to and use of goods and service, including indirect discrimination and discrimination by association, sexual harassment and harassment, and victimisation. The Acts allow positive action to promote equality for disadvantaged persons or to cater for the special needs of persons.
The Acts those selling goods or providing services to provide reasonable accommodation or special treatment or facilities where without these it would be impossible or unduly difficult for a person with disabilities to avail of the goods and services, unless this would cost more than a nominal cost.
There are some exemptions listed in the Acts such as in relation to certain functions of the HSE and insurance companies. Anything done under Irish or EU law is not discrimination under the Acts.
If you have been discriminated against by a service provider, you may be able to make a complaint to the Workplace Relations Commission. The WRC may then appoint a mediator, or if this is not possible, the issue will be adjudicator and an award of financial compensation may be made.
Discrimination in Education
The Equal Status Acts apply to all educational institutions including primary schools, secondary schools, universities and vocational training courses. The Equal Status Acts 2000-2015 make prohibit discrimination in relation to:
• Access to any course, facility or benefit they provide
• Any other term or condition of participation
• the expulsion of a student, or any other sanction against a student
However, there are situations under the ESA where people can be treated differently lawfully for example, you can have all boys or girl’s schools. Also, primary and secondary schools can give preference to students from one particular religion and refuse to admit someone of a different religion, so long as they prove that this is essential to keep the religious ethos of the school.
Discrimination & International Law
The European Convention on Human Rights Act, 2003 gives effect to the rights set out in the European Convention on Human Rights (ECHR). Article 14 of the ECHR creates a prohibition against discrimination in the enjoyment of Convention rights. In order to rely on Article 14, a breach of another convention right must have taken place which amounts to discrimination i.e. Article 14 is not a standalone right.
However, the Irish Constitution still has primacy over the ECHR and where a law is found to contravene a Convention rights, the courts must issue a declaration of incompatibility. Where this occurs, the government and the legislature must amend or repeal the offending legislation.
Ireland has also ratified a number of international human rights conventions which guarantee citizens the right to equality such as:
• the International Covenant on Civil and Political Rights (ICCPR)
• the United Nations Convention on the Rights of the Child
• the United Nations Convention Against Torture
• the United Nations Convention on the Elimination of All forms of Racial Discrimination
• the United Nations Convention on the Elimination of Discrimination Against Women (CEDAW)
Ireland is due to ratify the United Nations Convention on the Rights of Persons with Disability (UNCRPD) in 2018.
Although these international conventions are binding on the state, they cannot be relied on as a cause of action in the courts but are of persuasive value. In some cases, where all domestic remedies have been exhausted, a breach of the rights in these Conventions can be the basis of a complaint to the relevant United Nations treaty body. Any decision made in relation to such a complaint is not legally binding within the state however, decisions against the state can cause considerable embarrassment and can ultimately lead to a change in the law.