Introduction

The Equal Status Act, 2000 (the "ESA") is fully operational since October 25, 2000.

Prohibited Discrimination

It prohibits discrimination by service providers and educational establishments on the following nine grounds:

• Gender: male, female, transsexual
• Marital status: single, married, separated, divorced or widowed
• Family status: pregnant, parent to child under 18; primary resident carer
• Age: persons aged between 18 and 65
• Disability: includes physical, intellectual and emotional disabilities
• Religion: different religious belief, background, outlook or none
• Sexual orientation: heterosexual, homosexual or bi-sexual
• Race: includes ethnic, national or racial origins
• Membership of the traveller community

The ESA prohibits three types of discrimination, namely, direct, indirect and discrimination by association. The latter occurs where a person associated with another person (belonging to a specified group) is treated less favourably because of that association.

Discriminatory advertising is also prohibited under the ESA.

Who is covered by the ESA?

The ESA imposes obligations on service providers, educational establishments and providers of public premises/accommodation.

'Service' is broadly defined as any service or facility available to the public and includes:

• Access to and use of that place
• Facilities for:
• Banking, insurance, grants, loans, credit or finance;
• Entertainment, recreation or refreshments;
• Cultural activities; or
• Transport
• Profession, trade or service
• Service/facility provided by a club.

Public and private educational establishments (including, pre-school, primary or post-primary, adult, continuing education, university or other third level institution) are prohibited discriminating in relation to:

• Admission or terms/conditions of admission;
• Access of any student to any course, facility or benefit;
• Term/condition of participation in such course etc;
• Expulsion or other sanction of a student.

The ESA also provides that where premises/accommodation are available to the public generally or a section of the public, there can be no discrimination on the nine prohibited grounds in relation to:

• Disposal of any estate;
• Provision of a accommodation;
• Ceasing to provide accommodation;
• Terminating a tenancy.

Defences/Exceptions

There are a number of instances under the ESA where less favourable treatment is allowable.

Clubs

Importantly, the District Court can make a declaration that a registered club is a discriminating club. An order can be made to suspend the club's certificate of registration for a period of up to 30 days for a first offence. The effect of suspension of registration is that the club is not entitled to serve alcoholic drinks. Where a second or subsequent determination that a club is discriminating is in effect, no certificate of registration under the Licensing Acts shall be granted or renewed. An appeal from the determination lies to the Circuit Court.

Harassment

Harassment is defined to include actions unwelcome to the recipient which could reasonably be regarded as offensive, humiliating or intimidating on any of the nine prohibited grounds. It includes any conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which on any discriminatory ground could be regarded as offensive, humiliating or degrading. Therefore, there is a need to monitor display of posters, calendars or circulation of emails.

Any service provider or educational establishment can be vicariously liable where a person who has a right to be present in or to avail of services, suffers sexual or other harassment. Accordingly, it is critical that service providers monitor the behaviour of employees, other third parties and any complaints received.

Disability

'Disability' is broadly defined under the ESA and includes both physical, intellectual, cognitive or emotional disabilities and various medical conditions. Discrimination on the disability ground includes a failure/refusal to reasonably accommodate such persons, unless, the accommodation involves more than a nominal cost. Accordingly, service providers must review the provision of their services to ensure that there is compliance with the ESA and in particular that reasonable accommodation be made where required. This might, for example, require the provision of ramps or handrails.

Positive Action

Positive action is permitted to promote equality of opportunity for disadvantaged persons or to cater for the special needs of persons whom because of their circumstances, may require facilities, services or assistance.

Equality Authority

The Equality Authority's functions under the ESA include promoting equality of opportunities and elimination of discrimination in relation to employment. The Authority may prepare Codes of Practice in furtherance of its aims. The Codes, when approved, will be admissible in evidence in any proceedings.

Redress

Complaints must first be notified in writing to the person whom it is alleged engaged in discriminatory conduct. If the complaint is not appropriately dealt with, it may be referred to the Office of the Director of Equality Investigations (the "ODEI") for investigation by an Equality Officer. Strict time limits apply in relation to referral of complaints.

Compensation of up to £5,000.00 (€6349) may be awarded and/or the person against whom the complaint was made can be ordered to take a particular course or action.

The ODEI has ordered various courses of action, including, the following:

• Removal of offensive signs;
• Display of statement of compliance under the ESA;
• Preparation of written code of practice on refusals of service;
• Inform staff of ESA obligations;
• Establishment of an appeal system for persons refused membership to facility;
• Sign indicating commitment to equality.

Recent Decisions

In its first decision on the 'family status' ground, an Equality Officer found that a visually impaired man, accompanied by his 13 year old child, who had been refused a service by a publican because it had a no children policy was discriminated against contrary to the ESA. The Respondent was ordered to pay compensation in an amount of £2,000 (€2,539). It was further ordered to remove any signs suggesting that parents could not be served when accompanied by children under 18. In addition, it was ordered to display a sign indicating that it is committed to treating people equally in accordance with the ESA.

The ODEI in another decision found that a complainant had been discriminated against on the grounds of membership of the traveller community by a supermarket. Free shopping in an amount of £1,000(€1,270) was awarded in addition to compensation in an amount of £1,500 (€1,905) for embarrassment and humiliation suffered.

An Equality Officer found a hotel to have discriminated against a member of the traveller community. The hotel was ordered to draw up a written code of practice on refusals of service and to inform all relevant staff of the policy.

In a case where an Equality Officer found a traveller to be refused membership of a leisure centre, the centre was order to pay £500(€635). In addition, it was ordered to put an appeal system in place for people who are refused membership or use of the leisure centre.

Two travellers who succeeded in a claim of discrimination against a publican were each awarded £2,200(€2,793). The publican was also ordered to display a sign indicating a commitment to equality.

What Can Employers Do To Limit Liability?

• Review admissions/membership policies or criteria;
• Inform all staff of ESA obligations;
• Review all signs regarding admission;
• Review of advertising practices;
• Review all membership documentation, including, application forms;
• Preparation of statement of compliance with ESA;
• Review of access to buildings.

For further information contact: -

Telephone: +353-1-4395600
Fax: +353-1-4395601/4395602

© Kilroys Solicitors 2002