The Equal Status Act, 2000, deals with discrimination and related conduct in the provision of goods, services or facilities to the public or to a section of the public generally and is therefore beyond the scope of employment relationships.
The scope is very broad, including disposal of interests in premises, access to and the use of places, banking, entertainment, education, transport or travel, accommodation, private clubs, professional services, and public services.
The protected grounds are gender, marital status, family status, sexual orientation, religious belief or lack of belief, age, disability, race including nationality, and membership of the Traveller community.
Requirements of the Act
The Act prohibits:
• Direct discrimination
• Indirect discrimination
• Sexual harassment, or harassment based on any other protected ground
It also requires providers of goods, services or facilities to provide ‘reasonable accommodation’ for a person with a disability i.e. to do all that is reasonable to provide special treatment or facilities whose absence would make it impossible or unduly difficult for that person to avail of the goods/service/facility.
However, this obligation does not apply if the cost of reasonable accommodation is greater than nominal.
Direct discrimination involves less favourable treatment based directly on the discriminatory ground. For example, treating non-nationals less favourably than Irish nationals may discriminate directly on the race ground.
Indirect discrimination involves less favourable treatment which is not based directly on a discriminatory ground, but on an apparently neutral factor. For example, requiring evidence of fixed address as a condition of service might discriminate indirectly against Travellers or non-nationals. The complainant must show that in practice, this factor operates to disadvantage substantially more people in a protected category.
The Act provides a justification defence, if such a practice is reasonable in all the circumstances.
Harassment: Defined as conduct which is unwelcome to the victim and may reasonably be regarded as offensive, humiliating or intimidating.
Victimisation: arises where a person is penalised solely or mainly for seeking redress under the Act in good faith, or in related circumstances.
Exceptions and exclusions
There are a number of detailed exceptions to the Act. Any action required by another enactment is excluded. Other exceptions include disposals by will or gift, some risk-based assessments, and action taken in good faith to comply with the Licensing Acts.
Employers’ vicarious liability applies here as under the Employment Equality Act. In addition, educational establishments and premises where goods facilities or services are offered to the public, are obliged not to permit customers, or other persons with a right to be present, to suffer sexual or other harassment on the premises. There is a defence that “such steps as are reasonably practicable” were taken to prevent this occurring.
Attention is particularly drawn to the notification requirement
A complainant must serve written notification, referring to specific matters, on the respondent, within 2 months of the discriminatory act (extendable, in exceptional circumstances only, to four months). Absent such notification, the complaint cannot be treated. The complaint must be referred within six months of the discriminatory act (extendable in exceptional circumstances to a maximum of 12 months.)
All complaints are normally referred to the Equality Tribunal (formerly ODEI/ Office of the Director of Equality Investigations.)
This is the quasi-judicial body which also deals with claims under the Employment Equality Act 1998. Claims are investigated and decided by a Tribunal Equality Officer, or, where both parties agree, may be referred to the Tribunal Mediation Service.
Full details, including a database of decided cases, are available on the Tribunal website at www.odei.ie
Complaints against registered clubs, or (under the Intoxicating Liquor Act 2003) licensed premises, are referred to the District Court.
Decisions issued by the Tribunal are legally binding, with an appeal to the Circuit Court. They may provide for payment of compensation up to a limit of €6,348, or for an order that a specified person takes a specified course of action. Mediated agreements are legally binding, but are not published.