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LAST WEEK, I introduced the Employment Equality (Amendment) (No.2) Bill 2013 in the Seanad. It was accepted by Minister Kathleen Lynch on behalf of the Government and passed second stage. The lively debate on the Bill was attended by many groups that had been campaigning to see this legislation passed – including GLEN, the Equality and Rights Alliance, the National Women’s Council, the Equality Authority, LGBT Noise, Labour LGBT group, the INTO, Belong2, USI, OPEN and the ICCL.
The bill came from an initiative that I took along with Ciara Conway TD, Dominic Hannigan TD, John Lyons TD and Aodhán Ó Ríordáin TD – we believed it was important to bring forward legislation to change the current position in section 37 of the Employment Equality Act 1998.
This section currently provides that a specific exclusion of discrimination exists for religious-run educational or medical institutions. Such institutions may give more favourable treatment, on the religion ground, to an employee or prospective employee where ‘reasonable to do so in order to maintain the religious ethos of that institution’; and are allowed to take action reasonably necessary to prevent an employee or prospective employee from ‘undermining the religious ethos of the institution.’
To put it bluntly, a Catholic Church-run school or hospital can currently discriminate against, refuse to hire or even dismiss an LGBT employee, for example, because their sexuality is seen to offend against the religious ethos of a Church that is intolerant of homosexuality. Similarly, such a school or hospital can discriminate against a lone parent employee – again because of religious doctrine that is against non-marital relationships.
For years, teaching unions, LGBT groups and civil liberties groups have been calling for the repeal or amendment of the existing law. This change has also been Labour Party policy for many years now. Section 37 was particularly criticised because it confirms the appalling decision of the High Court in Flynn v. Power [1985] which upheld the dismissal of a pregnant teacher from her post in a convent school in New Ross, County Wexford.
In August 1982, Eileen Flynn had been fired from her job as a teacher in Holy Faith Convent in New Ross, County Wexford. The only reason – she was pregnant, but not married. This dismissal was upheld by the Court on the grounds that the Holy Faith order was entitled to take action to prevent its ethos being undermined.
The continued existence of this opt-out from discrimination has created a ‘chilling effect’ for LGBT employees, single parents or any others who work within religious-run schools or hospitals and who may be at risk of being seen to offend the ethos of the religion concerned. We believe that this chilling effect must be challenged. That is why we introduced this Bill to amends section 37(1).
Its key purpose is to protect individuals against discrimination in an appropriate and balanced way, whilst respecting religious freedoms. The amendment proposed would offer protections to staff of religious-run medical and educational institutions who are members of the LGBT community or those who are single parents, for example. It also provides for additional protections for employees or prospective employees where the religious-run or controlled educational and medical institutions are in receipt of state funding.
Both the Constitution and relevant EU law make it clear that a balance must be struck between the rights of individuals, and the religious freedoms which must be accepted in any society. Our Bill recognises that balance, but makes it clear that the private lives of teachers and health workers should not be used against them.
Section 2 of our Bill inserts a new section that says where an educational or medical institution is state-funded, it cannot give more favourable treatment on religious grounds unless such treatment does not constitute discrimination under any of the other grounds; and the religion of the employee must be a genuine, legitimate and justified occupational requirement. Similarly, a State-funded institution cannot take action to prevent the undermining of its ethos unless by reason of the employment itself or the context, the action taken is objectively justified by a legitimate aim and the means used are appropriate and necessary.
Finally, there is a new presumption of discrimination that provides an additional hurdle for a State-funded institution in seeking to justify any discrimination.
The Bill thus creates very significant additional hurdles for religious-run schools or hospitals who seek to justify discriminatory treatment – and for that reason it will certainly offer greatly enhanced protections against discrimination. The Labour Party in Government has already made progress on a number of issues that impact on Lesbian, Gay, Bisexual and Transgender (LGBT) people.
Minister Ruairí Quinn’s Action Plan on Bullying has included support for a national campaign to raise awareness of homophobic and transphobic bullying in our schools. Minister Joan Burton is working on the commitment in the Programme for Government on legal recognition and extension of equality protection for transgender people.
These measures all underline the Labour Party’s commitment to delivering a more equal society. Sadly, Eileen Flynn passed away in 2008, without seeing an end to the legal discrimination she suffered 31 years ago. This month, we have introduced this bill in the hope that no teacher or health worker should ever suffer her fate again.
Ivana Bacik is a Labour senator. For other articles written by Ivana for TheJournal.ie click here.
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Its a start. Its shocking that legally protected discrimination based on marital status and sexual orientation still exists in publicly funded institutions.
Agreed, I’m just shocked that the starting point is as described above.
What about born or newly required disability rampant out there in Irish society!!!!
Discrimination of workers in any type of bodies should not be allowed anymore, why limit ourselves to state funded?!
I have just recently became the latest causality of discrimination, I worked as a sales assistant for a well known chain of garages/shops on the grounds of disability. I had been working for them since 2004. After a nasty fall in 2008 I had been unfit for work, however in 2010 myself and gp felt that I could return to work part time, however this became a bit of a battle with their doctor who felt I would not be fit to return to work regardless what my gp felt. I constantly requested meetings each time ending with a visit to their doctors, when I again requested a meeting Jan 2013 sent to a corporate physical therapy place in town they upheld I would not be fit to do the job, even quoting what laws under the equality act I was covered. Finally I got a meeting with hr dept who flew in from england, asking for 4 hoursa day and not to lift heavy objects. I came away with a gut feeling I was going to lose my job. They knew I had other health issues when I was employed in 2004. The fall in 2008 compounded all together, however I could work in a support role, they did not feel the same judging I got the minutes of the meeting and dismissed from the 12th march 2013. Went to a solicitor who guided me on the direction to take regarding claiming unfair dismissal. This takes nearly two years, I will get just a basic statuary entitlements, I was told the laws protects the employer but different laws protecting private and public when did this happen? Aren,t we all citizens of Ireland?
Again the public services well provided for even in the laws of our land, where and how difficult will it be for a 53 year old woman now add disability the private sector need to lobby as hard if not harder to obtain the same deals and I call them deals because. If you take a closer look the public sector it includes politicans , judges, doctors and all in this sector, they really take home the best wages, pensions and now their legal rights, wow
Why did you oppose FF’s Bill, tabled by Averil Power, Senator? It was more comprehensive than this.
This is definitely a great start.
However, amending the constitution or laws does not necessarily mean that discrimination will evaporate into nothingness. Institutionalized discrimination is what follows a forced change in organizational culture when forced to cease discrimination. Therfore, change requires education, counseling and monitoring.
Sorry, remind me again, what year is this?
‘Kids, bullying is wrong. Everybody is different and we should respect those differences. Now please close your eyes while we fire Mrs Jones for being gay.’
Why do we even allow religion any more? Stalin had the right idea: we should ban all religions and every other so-called ethos
Yeah because the communist ethos worked out so well, didn’t it.
Tom. If u were to ban religion that would be discrimination to the person that wants to practise it.
Because making things we disagree with illegal is illiberal, unfair and wrong. Next question please, this one was easy.
Yea. Stallin. Wonderful role model. Sweet Jesus.
What about discrimination BY public sector workers?
Eg the refusal of HSE staff to perform civil marriages on Saturday.
If Labour truly represents “workers by hand or brain”, it needs to widen its focus from gender issues.
Don’t you mean discrimination IN FAVOUR of public sector workers……but that is a whole other discussion…….. :)
As long as religion is taught on schools it will be very difficult to decouple the two. If you want a strong sporting ethos in your school you employ sporty teachers, same would apply for a religious ethos.
Ivana you are one of the few politicians that I’m proud of!
To be fair, you would hardly expect a Roman Catholic school to employ a non-Catholic to teach religion in one of it’s schools? The Irish Constitution protects and promotes religion. Though that is the only example I can think of where this preference may be justified. In my humble opinion. Sounds ludicrous in a hospital setting. It also seems unjust for teachers other than religion. I presume Catholic and Protestants etc teach the same Geography.
Depends if your north or south of the boarder
In Ireland the lines are blurred though, as so many schools here are paid for and mostly run by the State, but technically owned by the Catholic Church or Orders. I think it’s important state-funded schools especially cannot discriminate…
Fantastic stuff, Ivana. I can’t tell you how impressed I am. :-(
Yep – let us get rid of privilege and discrimination Ivana – first of all start at the top. End the ridiculous privileges that are a remnant of ancient deference. Like those that allow universities to appoint members to the senate.
Excellent article Ivana.
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