Discrimination may be defined as the differential treatment of individuals or groups based on arbitrary or ascriptive criteria such as gender, race, religion, age, marital or parental status, disability, sexual orientation, political opinions, socio-economic background, trade union membership and activities, and so on. The existence or otherwise of deliberate intent to discriminate is immaterial; it is the effect of the action which matters. In Ireland, legislation prohibits discrimination on grounds of sex or marital status: this is found in the Employment Equality Act 1977 , which was enacted to implement the EC Equal Treatment Directive (76/207). The Act distinguishes between direct and indirect discrimination (see below), and victimisation , where an individual is penalised for asserting his or her rights under the legislation. Discrimination on grounds of trade union membership or non-membership is not covered comprehensively by law, but is dealt with in part through provisions on freedom of association and relevant parts of the Unfair Dismissals Act 1977 . New unfair dismissals legislation makes sexual orientation an automatically unfair reason for dismissal. In theory the Irish Constitution prohibits discrimination on other grounds, but this has never been explored in litigation. There is no active protection against discrimination on grounds of religion, race or colour, and attempts at asserting rights in this area have failed. Thus Irish statutory protection in the area of discrimination is very narrow. However, the establishment in early 1993 of the Department of Equality and Law Reform may signal a broadening of the legislative approach to discrimination: the new Minister has hinted at action in the areas of disability and the travelling community (the Irish gypsytype, but non-Romany community). The Department of Equality and Law Reform is at the time of writing working towards the establishment of a Commission on the Status of People with Disabilities, to be followed by a Council on the Status of People with Disabilities.
Discrimination under Irish law takes place where it can be shown that differential treatment took place as a consequence of the individual's sex or marital status. Whatever the reason for the discrimination (for example, some preferences will be expressed by employers on the basis of stereotypes, such as a belief that all married women will sooner or later go on maternity leave ), if it is based on the person's gender or marital status it is unlawful, even if an intention to discriminate is not present. The "burden of proof", in other words the requirement to satisfy the Labour Court that differential treatment took place, is on the claimant. Under the legislation, discrimination in relation to access to employment, promotion, terms and conditions of employment, training and career development and dismissal is unlawful.
It is also necessary to distinguish between direct and indirect discrimination:
Direct discrimination takes place where one person is treated less favourably than another in identical or similar circumstances on grounds of sex or marital status. Examples of direct discrimination which have been found unlawful include the insistence that women resign on marriage (the so-called "marriage bar" which existed in the Irish civil service prior to 1977), a refusal to employ men as passenger attendants on airlines (Aer Lingus, the national airline, insisted that passengers preferred women "stewardesses"), and advertising of jobs as being for one sex only; it is however worth noting that, in a small and closely defined set of circumstances, it is still permissible under the Employment Equality Act 1977 (section 17) to make appointments based on the sex of the employee where for the job in question sex is an "occupational qualification". A further example of direct discrimination is sexual harassment .
Indirect discrimination takes place when an apparently gender-neutral condition or requirement, which in itself is not necessary for the job, is applied, and which acts to the detriment of members of one sex or of a particular marital status. This form of discrimination is known in the United States (where it was first dealt with in law) as "disparate impact". Examples of indirect discrimination recognised by the Labour Court and civil courts include that on grounds of pregnancy, in that fewer women than men can comply with a "requirement" not to be pregnant (it should be noted that dismissal of a woman on grounds of pregnancy is grounds for unfair dismissal ); the use of age limits in recruitment since many women have breaks in their careers between their twenties and mid-thirties due to child-care responsibilities; a requirement that work should be done on a full-time basis, since over three-quarters of part-time workers are women; recruitment methods which rely on word-of-mouth in an area where the workforce is predominantly of one gender; and so on.
While legislation to combat discrimination in employment has been in place since 1977 (and in pay since 1974), it is clear that women still occupy unequal status in employment. It is now widely believed that, while legislation is important, it is not sufficient in itself to achieve equality in the labour market. It is for this reason that positive action initiatives are important, and are becoming more widespread. See also Anti-Discrimination (Pay) Act 1974 , dual labour market , Employment Equality Agency , equal opportunities employer , equal opportunities policy , Equality Officer .
Please note: the European industrial relations glossaries were compiled between 1991 and 2003 and are not updated. For current material see the European industrial relations dictionary.