Public authorities will still be able to discriminate against non-nationals who have not been granted refugee status, writes Eilis Barry
Disabled workers, workers over 65 and the self-employed will enjoy a far greater level of protection when the Equality Bill, 2004, is enacted. The Bill, currently awaiting Committee Stage in the Dáil, will allow employers for the first time to take positive measures to achieve "full equality in practice" across the nine discriminatory grounds.
But the Bill also appears to fall short of some of the requirement of the EU directives it is supposed to transpose into Irish law.
And, while it significantly improves the vulnerable position of migrant and other workers employed in private households and makes it easier to prove claims of indirect discrimination, sexual harassment and harassment, ministers, health boards, immigration officers, local and other "public authorities" will be able to discriminate against non-nationals who have applied for and have not been granted refugee status.
The Equality Bill aims to implement three EU directives, the Race Directive, the Framework Employment Directive and the revised Gender Equal Treatment Directive. These take precedence over the Employment Equality Act, 1998, and the Equal Status Act, 2000.
In some respects the Equality Bill provides greater protection than is required by the directives. However, it appears to fall short of the requirements of the directives, particularly in the areas of remedies, enforcement and exemptions.
Under the Employment Equality Act employers are only obliged to provide reasonable accommodation for employees with disabilities to the extent that this does not cost more than nominal cost.
This minimal responsibility reflects a perhaps overcautious response to the judgment of the Supreme Court which found, inter alia, the disability provisions of the earlier Employment Bill to be unconstitutional.
The effect of the Framework Employment Directive is to roll back the Supreme Court judgment by imposing a more onerous responsibility on employers to facilitate participation by disabled people.
The Equality Bill implements this obligation by requiring employers to take appropriate measures to enable a person who has a disability to have access to employment, to participate or advance in employment or to undergo training unless this would impose a disproportionate burden.
The prohibition on discrimination in the Employment Equality Act, 1998, did not apply to workers over 65 or under 18 (apart from provisions on vocational training). The Equality Bill 2004 abolishes the upper age limit (with certain exemptions in relation to occupational benefits scheme and exemptions which allow employers to offer fixed term contracts).
The new lower age limit is the school-leaving age (16) but with a provision to allow an employer to set a minimum age up to 18 years for recruitment. The Equality Bill expands the permitted categories of positive action in the workplace to encompass all nine grounds and to allow measures to ensure full equality in practice.
The position of migrant domestic workers is improved by the abolition of the absolute exemption in relation to employment for the purposes of a private household.
Employers can still discriminate in relation to hiring persons employed in another person's home for the provision of personal services but cannot discriminate in relation to other terms and conditions of employment.
However, none of the binding parts of the directives permit exemption in relation to any aspect of employment in a private household.
The Equality Bill would appear to fall short of the directives in a number of respects. All three directives have provisions requiring sanctions to be "effective, proportionate and dissuasive".
In the light of the provisions and the case law of the European Court of Justice it is surprising that the Equality Bill contains no provisions for :
a) Providing an option for all non-gender claims to be initiated in the Circuit Court as currently pertains for gender claims under the Employment Equality Act, 1998.
b) Removing the current ceiling of €6,350 on the maximum compensation that can be awarded under the Equal Status Act, 2000, and the Intoxicating Liquor Act, 2003, (in respect of race and Traveller community grounds).
c) To remove the two-month written notification provision in the Equal Status Act, 2000 (in respect of race and Traveller grounds).
The Race Directive has a very broad scope with very limited exemptions. It is therefore surprising that no steps have been taken to abolish the exemption in section 14 of the Equal Status Act, 2000, which allows legislated discrimination and the unique exemption in relation to licensed premises in section 15.
There are no provisions in the Equality Bill deeming laws, policies and practices in breach of the directives to be void. Implementation of the Race Directive will therefore be on a fragmented case-by-case basis.
And the Equality Bill contains no practical provisions to implement the State's obligation (under the revised Gender Equal Treatment Directive) to promote gender employment equality.
Equivalent duties have been effectively implemented in Northern Ireland by the introduction of a statutory duty on the public sector to have due regard to equality considerations in carrying out their function.