Opinion Employees can still be discriminated against over their sexuality – this must end

MANY PEOPLE WILL be shocked to learn that discrimination by schools against teachers on grounds of their sexuality is still allowed under our current law; section 37(1) of the Employment Equality Act 1998. This allows religious, educational or medical institutions that are run by religious bodies to discriminate against their employees or prospective employees, either by giving them more favourable treatment based on their religion; or, more controversially, by taking action to prevent them from ‘undermining the religious ethos of the institution.’

In other words, a Catholic Church-run school can discipline, dismiss or even refuse to hire an LGBT teacher, for example, because their sexuality is seen to offend against the religious ethos of a church that is intolerant of homosexuality. Similarly, a religious-run school or hospital could discriminate against a lone parent employee because of some religious doctrine against non-marital relationships.

‘Chilling effect’

Section 37(1) effectively confirms the 1985 decision of the High Court in Flynn v Power, in which the dismissal of a pregnant teacher from a convent school in Co Wexford was upheld by the court. In August 1982, Eileen Flynn had been fired from her job as a teacher in the Holy Faith Convent in New Ross. The reason – she was pregnant but not married. In a notorious judgment, the Court ruled that the Holy Faith order was entitled to take action against Ms Flynn to prevent its ethos being undermined.

The effect of this judgment, and its placement on a statutory basis in 1998, 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. Given that 95% of Irish primary schools are still run by religious bodies (the vast majority by the Catholic Church), this chilling effect is very real for a large number of teachers, in particular. Teachers may be afraid to speak openly about their private life amongst their peers in the staffroom; and this chilling effect has also denied many young LGBT people of role models in their classrooms, as it prevents teachers from being open about their sexual orientation.

Thus, section 37(1) has been subject to strong criticism for years from teachers unions like the INTO, civil liberties and human rights groups, and LGBT rights groups like GLEN (Gay and Lesbian Equality Network). It has also been long-standing Labour Party policy to end the potential for discrimination. The Programme for Government agreed between Labour and Fine Gael in 2011 states that “LGBT people should not be deterred from training or taking up employment as teachers in the State”. Yet section 37(1) remains part of our law – for now.

A balance must be struck 

In March 2013, with the support of my Labour colleagues, I introduced the Employment Equality (Amendment) (No. 2) Bill 2013 into the Seanad as a private members bill. This bill amends section 37(1) and seeks to end the potential for discrimination against employees or prospective employees on a range of grounds, including sexuality. It received Government support and returned for debate to the Seanad in April of this year, following publication of a report on its provisions by the Irish Human Rights and Equality Commission. It is due to resume in the Seanad in the coming weeks, and it is anticipated that Government amendments will be introduced to make it more robust.

The key purpose of the Bill is to protect individuals against discrimination in an appropriate and balanced way, whilst respecting religious freedoms. The amendment of section 37(1) 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.

Both the Irish 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 never be used against them. Minister Aodhan O Riordain has already indicated his commitment to ensure its swift passage into law. It is imperative that the Bill be passed through the Oireachtas as soon as possible – so that the chilling effect may at last be ended.

Ivana Bacik is a Labour senator. For other articles written by Ivana for TheJournal.ie click here.

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