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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