The Equal Status Acts 2000-2010

The Equal Status Acts 2000-2010 Charles O’Mahony Centre for Disability Law & Policy NUI Galway Disability Legal Information Clinic NUI Galway 5 October 2011

Strategy for Equality: A Watershed with Regards to the Rights of Persons with Disabilities in Ireland (1996)

Strategy for Equality – 1996 - Watershed The Report of the Commission on the Status of People with Disabilities – entitled A Strategy for Equality (1996). Established by Minister for Equality and Law Reform Mervyn Taylor in 1993. The Report signaled the need to adopt a more rights based approach to disability in light of international trends such as the introduction of the Americans with Disabilities Act 1990… Major consultative process involving persons with disabilities– who expressed frustration in relation to their exclusion – 600 written submissions received – 327 from persons with disabilities – 111 from parents and friends of persons with disabilities – 162 from organisations. In addition to 30 well attended listening meetings.

Strategy for Equality The Commission’s Report was endorsed by all parties in the Oireachtas. It was also widely supported by all sectors of society. It contained 402 recommendations Recommendations under the following headings: The Legal Status of Persons with Disabilities Policy Development & Implementation Delivering the Necessary Services

Strategy for Equality Income & Disability Work & Training Insurance Access Health Education Housing & Accommodation

Strategy for Equality Transport & Mobility Technology & Communications The Law & the Legal System Political Rights The Inclusion of Women with Disabilities Sexuality & Relationships Religious Practice

Strategy for Equality Arts & Culture Media Sports Leisure & Recreation Vulnerable People with Disabilities Research

Strategy for Equality Key Recommendations: Creation of the National Disability Authority (NDA) Definitions of disability should use language that reflects the rights of persons with disabilities to be treated as full citizens Enactment of a Disability Act A comprehensive strategy on disability that changed the relationship between service providers and persons with disabilities to reflect partnership Review of the law on legal capacity Inclusion of the disability ground in employment equality law No person should be overlooked for treatment or have treatment delayed or curtailed because of a disability

Recommendation 116 The Department of Equality and Law Reform should introduce Equal Status legislation concerning access to goods and services, facilities and services as soon as possible, ensuring that the legislation and any accompanying regulations and/or guidelines define what is reasonable and what constitutes undue difficulty in such a way as to minimise derogations which mitigate against the universal right of access.

Strategy for Equality An internal progress Review of the Report carried out an inter-departmental task force in 1999. It reported that 20% of the Report’s recommendations were implemented fully. Progress had been made on 66% of the recommendations. There was no consultation with members of the disability community in relation to the their perceptions of progress.

Equality Legislation Employment Equality Acts 1998-2010 Equal Status Acts 2000-2010

The Arrival of Equality Legislation The Equality Authority is an independent body established under the Employment Equality Act 1998. The Equality Authority replaced the Employment Equality Agency, and has a greatly expanded role and functions. The Employment Equality Acts 1998-2010 and the Equal Status Act 2000-2010 outlaw discrimination in employment, vocational training, advertising, collective agreements, the provision of goods and services and other opportunities to which the public generally have access on nine distinct grounds.

Role of the Equality Authority The Equality Authority has an in-house Legal Service. At its discretion, where the case has strategic importance, provide freelegal assistance to those making complaints of discrimination under the Employment Equality Acts and the Equal Status Acts. Mission Statement is to “achieve positive change in the situation and experience of those groups and individuals experiencing inequality by stimulating and supporting a commitment to equality”

Equal Status Acts 2000-2010 The Equal Status Acts cover the 9 grounds: Gender Civil status (section 103 Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) Family status Age Disability Race Sexual orientation Religious belief & Membership of the Traveller Community

Equal Status Acts 2000-2010 The Acts apply to persons who: buy and sell a wide variety of goods useor provide a wide range of services obtain or dispose of accommodation attendat, or are in charge of, educational establishments

What is a Good? There is a very broad approach in terms of what constitutes a good: Section 2 “goods” means any articles of movable property

What is a Service? Section 2 Equal Status Acts “service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes— access to and the use of any place, facilities for— (i) banking, insurance, grants, loans, credit or financing, (ii) entertainment, recreation or refreshment, (iii) cultural activities, or (iv) transport or travel, (c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and (d) a professional or trade service, but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;

Equal Status Acts Definition of Disability Disability is broadly defined to include: people with physicaldisabilities intellectual or learning or cognitive disabilities emotional disabilities & a range of medical conditions.

Equal Status Acts Definition of Disability Section 2 of the Equal Status Acts defines disability: “disability” means— (a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, disease or illness which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

Discrimination

Equal Status Acts & Reasonable Accommodation The Equal Status Acts Requires the provision of reasonable accommodation of persons with disabilities. Specifies that the failure to provide reasonable accommodation is a form of discrimination. In the Equal Status Act reasonable accommodation is defined as the provision of a special treatment or facility, where without such special treatment or facility it would be impossible or undulydifficult for the person to avail of the service. A refusal to provide such a treatment or facility will not amount to discrimination where it gives rise to more than a nominal cost. In Roche v Alabaster Associates Limited t/a Madigans(DEC-S 2002-086) it was held that refusing access to premises to a person accompanied by a guide dog amounted to discrimination for a failure to provide reasonable accommodation.

Equal Status Acts & Reasonable Accommodation In Forrestal v Hearns Hotel, Clonmel (DEC-S2001-018) it was held to be discrimination not to allow a wheelchair user access to a nightclub. In Six Complainants va Public House(DEC-S2004-009-014)only one of the six complainants was disabled, the other five complainants claimed discrimination by association. The six complainants were successful in raising a case of prima facie discrimination arguing and that the respondent failed to reasonably accommodate all six complainants.

Equal Status Acts & Reasonable Accommodation In MrPat Hallinan v Moy Valley Resources I.R.D. North Mayo-West Sligo Ltd(DEC-S2008-025) the Equality Officer stated that the onus is on the respondent to demonstrate how the provision of a special treatment or facility would create more than a nominal cost to it.

What is Prohibited? Discrimination is prohibited (subject to certain exemptions): when they are providing goods and services to the public (or some members of the public) regardless of whether the goods and services are free or whether the goods and services are sold, hired or rented or exchanged access to and the use of services is covered

What is Discrimination? There are different forms of discrimination e.g. direct discrimination, indirect discrimination, discrimination by imputation and discrimination by association.

Direct Discrimination Direct discrimination is deﬁned as the treatment of a person in a less favourable way than another person is, has been or would be treated, in a comparable situation on any of the nine grounds which: exists existed may exist in the future or is imputed to the person concerned

Indirect Discrimination Indirect discrimination happens where there is less favourabletreatment by impact or effect. Indirect discrimination happens where people refused a service not for a discriminatory reason, but because of a provision, practice or requirement that they ﬁnd hard to satisfy. For example, if a local authority decided not to make information available in an accessible manner to save money – it could be indirectly discriminatory in respect of persons with disabilities. N.B. If the service provider can prove that the provision is objectively justiﬁed by a legitimate aim and the means of achieving that aim are appropriate and necessary, then it conduct might not amount to indirect discrimination.

Example of Indirect Discrimination Seán Thompson v IarnródÉireann (DEC-S2009-015). Mr Thompson, who has a visual impairment, commuted to work by Dart using a free travel pass issued by the Department of Social and Family Affairs (DSFA). He claimed that he was being discriminated against by Iarnród Éireann on grounds of disability. As he was required to queue for a travel ticket on each day of travel. He was prohibited from getting his ticket in advance (for example the evening before) as other customers who do not have a free travel pass were allowed to do. IarnródÉireann operated a “same day only” restriction on travel tickets for persons with a disability who are in possession of a DSFA free travel pass. MrThompson claimed that the restriction on travel tickets for persons with a disability constituted discrimination under the Equal Status Acts and failure to provide reasonable accommodation.

Thompson v Iarnród Éireann What did the respondents argue? Iarnród Éireann argued that there was a problem with fraudulent use of free travel passes & the practice complained of safeguarded against this. However no evidence of such fraud was produced by the respondents.

Thompson v Iarnród Éireann What did the Equality Officer find? The Equality Officer found that a prima facie case of indirect discrimination The respondent had failed to provide reasonable accommodationin accordance with Section 4 of the Equal Status Acts. Complainant awarded €750 in compensation as redress for the inconvenience caused. The respondent was ordered to review its policy in terms of the requirement for the holders of free travel passes to present at the ticket office on each day of travel in order to ensure that the policy is in full compliance with the Equal Status Acts.

Discrimination by Association Discrimination by association arises where a person associated with another person (identified to the discriminatory ground(s)) is treated less favourably on the basis of that association. For example, a person with a disability is refused access to a shop on the basis that they have a disability and their friend is also refused access – both persons are entitled to receive protection under the Equal Status Acts.

Discrimination by Association In McMahon and five others v McGowan’s Pub(Circuit Court, 23 June 2005). The complainant alleged that he was directly discriminated against and that there had been a failure to reasonably accommodate him. The complainant has an intellectual disability which affected his balance, speech and communication. He went with five members of his family to the respondent’s premises to celebrate his mother’s 50th birthday. The doorman refused the complainant having determined that he was under the influence of alcohol and refused the entire group access because of this. The complainant was upset and distressed as he believed he spoiled a family night out, equally the family were upset at the embarrassment caused to him and the effect this even had on his self-confidence. The Tribunal accepted that he raised a prima facie case of direct discrimination and found that the complainant had been discriminated against on the grounds of his disability and the remainder of the family had been discriminated against based on their association with the complainant. The Tribunal further found that the service provider had failed to provide a reasonable accommodation. The accommodation required by the Tribunal was that a licensed premises should be aware of the possibility for reasons other than drunkenness that may affect a person's demeanour. The Tribunal held that the complainant group were refused admission to the premises without the provision of the normal accommodation afforded to patrons, which was for the doorman to engage in conversation with the patrons to ascertain whether they were intoxicated, he did not do so with the complainant. Had the doorman engaged the complainant in such a conversation it would have been apparent that he was not in fact intoxicated.

Discrimination by Association This decision was appealed to the Circuit Court, the respondent sought to have this case heard in private but was not successful. Judge Delahunt of the Circuit Court held that the appellant had acted in good faith and was not guilty of discrimination. The Judge held that where a person seeks reasonable accommodation under the Equal Status Act 2000 he must first prove that the: “service provider had actual or implied knowledge of the disability and disregarded such knowledge either intentionally or unintentionally in order to succeed in a claim.”

Other Issues

Advertising Section 12 of the Equal Status Acts 12.—(1) A person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct or might reasonably be understood as indicating such an intention. (2) A person who makes a statement which the person knows to be false with a view to securing a publication or display in contravention of subsection (1) shall, upon the publication or display being made, be guilty of an offence. (3) In subsection (1), “advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing or display of advertisements shall be construed accordingly.

Victimisation Victimisationis expressly prohibited under the Equal Status Acts. What is victimisation? It occurs in circumstances where adverse treatment by a provider of goods and services, by a provider of accommodation, or by an educational establishment or club is made as a consequence of: having made a complaint of discrimination to the Equality Tribunal having been a witness in proceedings under the Equal Status Acts

Vicarious Liability What is vicarious liability? Employers are liable for discriminatory acts of an employee in the course of his or her employment, unless they can prove that they took reasonably practicable steps to prevent the conduct. See section 42 of the Equal Status Act 2000

Positive Action Section 14 provides that nothing within the Act shall prohibit preferential treatment or the taking of positive measures which are bona fide intended to: promoteequality of opportunity for persons who are, in relation to other persons, disadvantaged or who have been or are likely to be unable to avail themselves of the same opportunities as those other persons; cater for the special needs of persons, or category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs. Section 16 also permits preferential fee charges in respect of goods and services in respect of persons with a disability or in specific age groups.

Exemptions

General Exemptions The Acts allow people to be treated differently on any of the grounds in relation to the following: Insurance Wills and gifts Promotion of special interests Special needs

Specific Exemptions There are a range of exemptions to the Equal Status Acts: The Acts allow people to be treated differently on the basis of their gender, age, disability or nationalityvis a vis the provision or organisation of sporting facilities or events. However, only where the differences are reasonably necessary and are relevant.

Specific Exemptions The Equal Status Acts allow people to be treated differently on the gender, age, disability or race ground in connection with a dramatic performance or other entertainmentbut only if the differences are reasonably required for reasons of authenticity, aesthetics, tradition or custom.

Discriminating Clubs See section 8 on discriminating clubs

Discriminating Clubs 9.—(1) For the purposes of section 8 , a club shall not be considered to be a discriminating club by reason only that— (a) if its principal purpose is to cater only for the needs of— (i) persons of a particular gender, marital status, family status, sexual orientation, religious belief, age, disability, nationality or ethnic or national origin, (ii) persons who are members of the Traveller community, or (iii) persons who have no religious belief, it refuses membership to other persons, (b) it confines access to a membership benefit or privilege to members within the category of a particular gender or age, where— (i) it is not practicable for members outside the category to enjoy the benefit or privilege at the same time as members within the category, and (ii) arrangements have been made by the club which offer the same or a reasonably equivalent benefit or privilege both to members within the category and to members outside the category, (c) it has different types of membership, access to which is not based on any discriminatory ground, (d) for the purpose of reducing or eliminating the effect of any rule or practice of the club (whether adopted before or after the commencement of this section) restricting access to particular types of membership to persons of a particular gender it offers concessionary rates, fees or membership arrangements to persons who were or are disadvantaged by any such rule or practice, or (e) it provides different treatment to members in the category of a particular gender, age, disability, nationality or national origin in relation to sporting facilities or events and the different treatment is relevant to the purpose of the facilities or events and is reasonably necessary. (2) For the purposes of section 8 , a club shall not be considered to be a discriminating club by reason only that it— has, for the principal purpose of promoting equality, a reserved place or places on its board or committee of management for persons who are members of a particular category, or (b) takes other measures for the principal purpose of obtaining a more equal involvement in club matters of persons who are members of a particular category.

Equality Authority v Portmarnock Golf Club [IESC 73 (2009)]

Equality Authority v Portmarnock Golf Club [IESC 73 (2009)] The Supreme Court held that Portmarnock Golf Club was not a discriminating club under the Equal Status Acts Women were permitted to play at Portmarnock but were not entitled to become full members. The Supreme Court majority of three to two, the Supreme Court upheld a 2005 High Court decision that is was not a discriminating club as it came with the exemption in section 9 of the Equal Status Acts.

Equal Status Acts & Education

Education The Equal Status Act 2000 refers to educational establishments at section 7. “Educational establishment” is broadly defined covering pre-school services through to higher-level institutions, regardless of whether or not they are supported by public funds. If an organisation provides education (public & private) they are covered by the Act. Discrimination on all ninegroundsis prohibited in respect of: admission to the terms or conditions of admission of aperson as a student to the establishment; the access of a student to any course, facility orbenefit provided by the establishment; any other term or condition of participation in theestablishment by a student, or the expulsion of a student from the establishment or any other sanction against the student.

Education Section 7(4)(b) of the Equal Status Acts excludes the provision of the Act in relation to the provision of education where compliance with the non-discrimination provisions would make it impossible or have a seriously detrimental effect on the provision of education to other students.

Education The Education system provides a complaints procedure by virtue of the Education Act 1998. This system addresses issues such as enrolment, suspension or removal of children from a school. Therefore, the use of anti-discrimination legislation is not a first option for those who find discrimination in the education system.

EDUCATION Note that section 4(1) re reasonable accommodation is limited by section 4(5) of the Act which provides: This section is without prejudice to the provisions of sections 7(2)(a) , 9(a) and 15(2)(g) of the Education Act, 1998 , in so far as they relate to functions of the Minister for Education and Science, recognised schools and boards of management in regard to students with a disability.

Education Cahill v Minister for Education(High Court, June 2010) In June 2010, the High Court upheld the practice of annotating (flagging) the test scores of a student with dyslexia who had received certain accommodations in their Leaving Certificate examinations in 2001. In October, Mr Justice Eamon de Valera, in the High Court, also made an order of costs against the applicant.

Education The High Court accepted the Department of education’s argument that the absence or deletion of the annotation of the applicants transcript would amount to a misrepresentation to employers or other persons who might rely on the document, and would also call the integrity of the exam into question.

Equal Status Acts & Education “The Equal Status Act 2000: A Brief Guide for Students with Disabilities” (Dublin: Association Higher Education Access & Disability, 2000). Available at: http://www.ahead.ie/userfiles/file/shop/free/EqualStatusAct2000factsheet.pdf.

Equal Status Acts & Housing

Housing Section 6(1) of the Equal Status Acts prohibits discrimination in the disposing of any estate or interest in premises, in respect of terminating any tenancy or other interest in the property, or in the provision of accommodation, or amenities related to such accommodation. The provision does contain a number of exceptions, the first relates to accommodation that is being provided in a person’s home, that is that the “provision of accommodation affects the person’s private or family life or that of any other person residing in the home.” Another such exception relates to accommodation that is reserved for a particular category of people, and this may relate to one of the discriminatory grounds, such as a residential centre for people with disabilities, or a nursing home for older persons.

Housing Section 6(6) of the Equal Status Acts provides that nothing in the Act shall be construed as prohibiting housing authorities pursuant to their functions under the Housing Acts 1966-1998 or the Housing (Miscellaneous Provisions) Act 1992 from providing in respect of housing different treatment to person based on family size, family status, civil status, disability, age or membership of the Traveller community. This provision allowslocal authorities to prioritise in favour of the categories of persons outlined in the subsection, including persons with disabilities.

Housing In a judgment in the Circuit Court appeal in Dublin City Council v Deans Judge Hunt stated that section 6(6) could not be construed as: “exempting a housing authority in its entirety from all application of equality legislation. It appears to me simply to provide that a housing authority is entitled to base its priorities and its housing plan on different treatment to persons based on family size, family status and other considerations set out in the subsection”. Decision of the Circuit Court, Hunt J, 15 April 2008.

Housing & Reasonable Accommodation A Complainant v A Local Authority(DEC-S2007-049) MsC applied for an extension to her mid-terrace property under the Disability Persons Alteration Scheme, her son has autism. Her initial application was rejected due to her son’s disability not falling within the scope of the Scheme. After two appeals, the application was eventually approved by the Director of Public Health and Medicine in 2004 and was given a level 3 priority rating, meaning low level of need. The Complainant was told by the Respondent that the Respondent’s architect reported that extending Ms. C’s premises would not be feasible. However, the Complainant later found out, following a request under the Freedom of Information Act, that the architect’s report showed that an extension was feasible. In the same year (2004), the local authority ceased making extensions to mid-terrace properties as a matter of policy. Applicants, including Ms. C, who lived in such dwellings, were subsequently invited to apply for transfer to alternative accommodation.

Housing & Reasonable Accommodation Re reasonable accommodation: the respondent stated that it had provided a home to the complainant and her son. The Equality Officer described it as: “the provision, by any service provider, of any/all reasonable treatment or facilities without which itwould be unduly difficult or impossible for a disabled person to avail of the service in question.” The service in this case was the processing and consideration of applications under the Scheme, and subsequently carrying out property alterations or providing alternative accommodation, where applicable. The Equality Officer found that the treatment of Ms. C’s application did not satisfy the requirement to provide reasonable accommodation because the extent of L’s disability was not taken into account. Compensation of €6,350 was awarded to the Complainant, and the Equality Officer also ordered the Local Authority to remedy the effects of the delay in their decision making process by extending L’s home or by re housing him and his family within 12 months. Orders were also made that the Respondent should draw up and publish comprehensive policies with regard to the Scheme.

Making a Claim

Making a Claim The Equality Tribunal, District Court and Circuit Court have roles in relation to claims under the Equal Status Acts 2000–2010. Claims in relation to discriminating clubs are heard by the District Court. All other claims under the Equal Status Acts are brought before the Equality Tribunal which is the quasi-judicial body – its remit to investigate, mediate, hear and decideclaims under the Equal Status Acts.

Making a Claim: Step 1

Making a Claim: Step 1 Step 1: Written notification: Section 21(1) of the Equal Status Act provides that a complainant must instigate proceedings within two months of the discriminatory act. This involves sending a written notification to the alleged discriminator. This system has proved problematic for a number of protected groups.

Making a Claim: Step 1 Written notification can be done by acquiring and filling out form ES.1 accompanied by ES.2 for a reply. Available at: www.equalitytribunal.ie Or a complainant can write to the Equality Authority for a form Written notification must be sent. Equality Authority recommends obtaining a certificate of posting from the post office as proof of postageand to keep a copy of the written notification.

Making a Claim: Persons with Intellectual or Psychological Difﬁculties A parent, guardian or other person acting in place of a parentcan be the complainant where a person is unable by reason of an intellectual or psychological disability to pursue a claim effectively.

Making a Claim: Step 2 If there is no response within 1 month or if the reply is unsatisfactory, the complaint should be referred to the Equality Tribunal within six months of the discrimination. The claim can be referred by acquiring and ﬁlling out form ES.3. You must lodge claim with the Equality Tribunal.

Making a Claim: Step 2 The Director of the Equality Tribunal for reasonable cause can decide to: extend the period of written notiﬁcation from two to four months& extend the 6 month time limit to 12 months Only in exceptional circumstances canthe Director may waivesome or allof the written notiﬁcation requirements.

Making a Claim: Step 3 Mediation The Director of the Equality Tribunal candecide (with the consent of both parties) to appoint a mediation ofﬁcer. If the mediation achieves a settlement between both parties then the terms are legally enforceable.

Making a Claim: Step 3 Investigation When mediation is unsuccessful the Director of the Equality Tribunal appoints an Equality Ofﬁcer to investigate, hearand decide the claim. Investigationsare carried out in private. The Equality Ofﬁcer will issue a decision that is legally binding.

Making a Claim: Step 3 Representation and costs A complainantcan represent themselves or be represented by a lawyer, trade union, community group or other representative. Generally costsare not awarded. However, travel costs and other expenses (except expenses of representatives) can be awarded where a person obstructs or impedes the investigationor appeal.

Making a Claim: Step 3 Remedies If there is a finding in favour of the complainant, compensation can be awarded of up to a maximum of €6,350. The Equality Officer can also order respondents to take specified courses ofaction.

Making a Claim: Step 3 When can an application be struck out? The Director of the Equality Tribunal can dismiss a claim if they consider that it has been lodged in bad faith, or is frivolous, vexatious or misconceived or relates to a trivial matter or where it appears that the complainant has not pursued their claim (after a year).

Making a Claim: Step 3 What About Appeals? All decisions made (including decisions on time limits and striking out of the claim) can be appealed to the Circuit Court. The appeal must be lodged no later than 42 days from the date of the decision. There is no further right of appeal except to the High Court on a point of law.

Making a Claim: Step 3 Enforcement Decisions of the Director of The Equality Tribunal or a mediation settlementwhich has not been complied with, can be enforcedthrough the Circuit Court.

Equality Authority Website Useful Resources: Your Equal Status Rights Explained Your Employment Equality Rights Explained

Equal Status & the European Union What is coming down the tracks? Draft EU Directive on Services in the Internal Market

Thank you for your attention Charles O’Mahony:– c.omahony3@nuigalway.ie

The Equal Status Acts 2000-2010