Implications of new EU equality Directives in Ireland

Ireland, along with the other Member States, must implement the new EU equality Directives - the framework employment Directive and race Directive - by 2003. A major conference held in summer 2001 examined the two Directives and their likely impact on Irish equality law.

On the 30 June 2001, the Irish Centre for European Law and the Equality Authority jointly hosted a conference on European and Irish equality law in Dublin. The conference represented the culmination of a comprehensive joint study of equality law in Ireland, and the contributors included leading academics and practitioners. The main aim of the conference was to examine the likely impact of two recently adopted European Union equality Directives on Irish law.

Below, drawing on the conference proceedings, we examine the nature of the two new Directives and then go on to analyse the scope of existing Irish equality law - in terms of the enforcement regime and potential remedies, and some important amendments that may be required when the Directives are transposed into Irish law.

The two new EU equality Directives, based on Article 13 of the European Community (EC) Treaty, are:

• Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (the 'framework employment Directive') (EU0102295F); and

• Council Directive 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the 'race Directive') (EU0006256F).

History of the the equality Directives

The conference opened with an introduction to the two 'Article 13' Directives by Adam Tyson from the European Commission Directorate General for Employment and Social Affairs.

According to Mr Tyson, the early motivation for European Commission involvement in discrimination issues was economic: 'It was about getting rid of barriers to the movement of goods and people between different states. In the field of equal pay it was about ensuring that employers in Member States couldn't undercut each other.' During the 1980s and 1990s, however, politicians became aware of growing disillusionment amongst people that Europe was 'focusing far too much on a business agenda, the creation of a European single market, and preparations for the single currency'. There was a perception that people's day-to-day concerns, such as discrimination, were not being addressed. In response to this disillusionment, politicians amended the European Union legal framework by agreeing the Amsterdam Treaty in 1997 (EU9707135F). The Amsterdam Treaty led to the insertion of Article 13 into the EC Treaty, giving the Community the power to 'take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation'. Significantly, Article 13 is not just limited to employment issues, but to discrimination in society as a whole: 'One of the principles of membership of the European Community is equality for all and, in particular, prohibition of discrimination on the various grounds.'

Article 13 has so far led to two separate Directives, which reflect differences in the various grounds of discrimination: the race Directive and the framework employment Directive. The former deals with combating discrimination on the grounds of racial or ethnic origin, and covers social protection (including social security and healthcare), social advantages, education and access to and supply of goods and services which are available to the public (including housing), as well as employment. The latter deals with discrimination on grounds of religion or belief, disability, age or sexual orientation, and is limited to employment and occupation.

Reflecting on the fact that there are two separate Directives, Mr Tyson remarked: 'I will leave you to decide whether or not this means we have created a hierarchy between the different grounds - whether we are discriminating between the different grounds.'

In practical terms, he stated: 'it is probably true to say that there has been a relative improvement in the level of protection in many Member States over what currently exists, particularly over the newer, less traditional grounds of discrimination such as age, disability and sexual orientation.'

In terms of the transposition of the Directives into national law in the EU Member States (due by July 2003 for the race Directive and December 2003 for most provisions of the framework employment Directive), the Directives establish a minimum floor of standards with which all Member States must comply. However, all Member States are free to develop higher standards of protection than provided for in the Directives. A crucial issue, siad Mr Tyson, is that there is a requirement for some degree of consensus in Member States for the effective implementation of equality principles: 'If there is no consensus around how to deal with equality and fight discrimination, implementation will be very patchy. In some cases the consensus will be at the minimum level required by the Directives, and in others at a higher level of protection.'

Mixed blessings

Dr Lisa Waddington, a lecturer in EU law at Maastricht University, offered a critical appraisal of the new equality Directives.

Two main reasons for praising the Directives were put forward. The first is that 'they exist at all' given that few Member States have comprehensive non-discrimination legislation in all areas covered by the Directives, and that significant opposition to the Directives from various quarters had to be overcome. The second reason is that they are 'second-generation equality Directives' and are more advanced than earlier initiatives. They offer greater clarity and more precise definitions than earlier Directives such as the 1976 Directive on equal treatment for men and women (76/207/EEC). Moreover, the new Directives have a broader scope than their predecessors in a number of areas:

• there is provision for more effective national-level enforcement and litigation mechanisms, such as special equality agencies and litigation associations, which assist victims of discrimination;

• there is greater protection from harassment, which is expressly forbidden;

• the two Directives have a broader material scope than previous Directives. The framework employment Directive covers all employment-related areas such as self-employment and membership of professional organisations, while the race Directive covers employment, as well as social security, social advantages, education, and housing; and

• the framework employment Directive obliges employers to make a reasonable accommodation in certain cases to promote equality of employment opportunity for people with disabilities.

Dr Waddington also put forward two main criticisms of the new Directives. The first is that there are 'confusing differences in treatment' between the Directives: 'they are not altogether coherent in their approach to equality, the tools used for securing enforcement, or the fields where discrimination is prohibited or allowed.' One important distinction is that the material scope of the race Directive is much broader than that of the framework employment Directive. Another distinction is that there are a large number of exemptions and exclusions provided for under the framework employment Directive, such as the fact that Member States may opt for an extended transposition deadline of six years with regard to disability and age, whilst for the other grounds implementation must occur within three years (three years is also the period for implementing the race Directive). A significant consequence of these distinctions is that 'a clear hierarchy of equality continues to exist and has actually been reinforced by the new Directives.' Sex equality, which was traditionally at the top of the non-discrimination hierarchy, has been replaced at the top by race equality. Age discrimination, meanwhile, is firmly at the bottom of the hierarchy. This equality hierarchy, according to Dr Waddington, is largely a consequence of political priorities and pragmatism.

The second criticism is that the Directives are associated with the 'entrenchment of a limited view of equality'. The EU perspective on equality is criticised as being quite limited and framed in rather negative terms because 'it confers a right not to be discriminated against, rather than a positive right to equal treatment.' Thus, the new Directives are aimed at preventing discrimination, rather than the more ambitious goal of 'actively promoting equality'.

Dr Waddington concluded by observing that the Directives can be regarded as: 'a case of Europe delivering where the national governments would not or could not. However, what has actually been delivered may prove to be a mixed blessing. Whilst the adoption of the two new equality Directives must be regarded as a significant development, the confusing differences in treatment provided for in the Directives will result in differing levels of protection for the covered groups, and may create controversy and confusion at the national level.'

Mainstreaming equality law

A final paper on the new EC equality law framework was delivered by Christopher McCrudden, professor of human rights law at Oxford University. Professor McCrudden's paper was entitled 'Theorising European equality law and the tole of mainstreaming'.

According to Professor McCrudden, the real debate about European equality law is only just emerging, and various issues are set to arise in the context of the new Article 13 Directives. This debate is viewed as having the potential to be acrimonious.

One of the key issues is 'whether we should view the emerging European equality law as providing a common conception of equality', and if a common conception does emerge, 'will this lead to a harmonisation upwards or a harmonisation downwards' of equality standards? Another key issue of debate is whether a 'hierarchy of grounds of discrimination' has been implicitly adopted by the European Union.

Several thorny questions arise from this debate: should we view equality law as concentrating on securing an individual conception of merit, or a more group-based redistributive principle? Is a 'symmetrical' or an 'asymmetrical' view of equality appropriate, ie should we be as concerned with discrimination against males as females? Where do we draw the line between protecting some individuals from discrimination on the basis of their religious beliefs, and condemning their apparent discrimination against others?

Above all, according to Professor McCrudden, the crucial question at the heart of these debates is 'what do we mean by equality in the context of EC law, and what are its limits?' There are five major meanings attached to the concept of equality that apply to the existing Directives, and they may relate differently to different groups:

• the conception of 'equality as rationality ' is most often found in judicial interpretations of general equality provisions, which although formulated as a non-discrimination standard, constitute a relatively low-level standard. In other words, discrimination exists where there is no rational or reasonable justification for a difference in treatment. The new Directives appear to go beyond this narrow meaning of equality;

• the 'individual justice model of equality', concentrates on reducing the harmful consequences of discrimination on grounds of race, gender and so on for individuals. It has been criticised for not capturing the depth of the problem of discrimination - in particular, for not addressing the fact that discrimination is often institutionalised and structurally embedded as well as being inflicted on individuals by individual perpetrators. This model is reflected in the new Directives, particularly in relation to the prohibition of direct discrimination;

• the 'group justice model ' relates to the view that anti-discrimination law should concentrate more than the individual justice model does on outcomes, particularly in terms of the redistribution of resources and opportunities from an advantaged group to a disadvantaged group. Thus, it is concerned with improving the relative position of groups rather than individuals. It is associated with tackling indirect discrimination, loosely defined as 'prohibiting practices that have the effect of disproportionately disadvantaging a particular group', and the utilisation of various group-based 'positive or affirmative action' remedies, where preferential treatment is given to members of a particular group. The degree to which this model is reflected in the Directives is open to debate;

• the 'equality as recognition ' model refers to the recognition of diverse identities and lifestyle choices relating to sexual orientation, religious beliefs, and ethnic traditions. This model is partially incorporated in the Directives, particularly in terms of the prohibition of discrimination on the basis of sexual orientation; and

• the 'equality as participation ' model views struggles for recognition by various social groups such as women, disabled people and ethnic groups as essentially struggles for a political voice in public affairs that enables them to articulate their own priorities at the decision-making table.

Equalities and mainstreaming

According to Professor McCrudden, each of the above models has its advocates and its critics. There is no one model or meaning of equality that can claim to represent the central tenets of European equality law. Aspects of each model are important and are reflected to some extent in the new Directives. There are tensions between each conception of equality. Contrary to the view of Dr Waddington, Professor McCrudden suggests that the complexities and compromises that are explicit and implicit in the Directives are more than simply a reflection of political pragmatism. Rather, they also reflect patterns of different perceptions of equality. Thus, political pragmatism may actually have resulted from different implicit perceptions of equality.

The approach that the European Union takes in attempting to accommodate the different conceptions of equality involves placing an important emphasis on the principle of subsidiarity. That is, Member States have to enact legislation within a certain timeframe, but they have a degree of discretion to decide what are the most appropriate means of transposing the Directive in their own particular circumstances.

Turning to the role of the judiciary, Professor McCrudden was concerned that, when faced with the sheer complexity of equality issues, the European Court of Justice (ECJ) - whose role is critical in the development of European equality law - will reduce the conception of equality to the 'lowest common denominator': ie 'equality as rationality'.

Finally, the issue of 'mainstreaming' equality issues in public policy-making is seen as playing a potentially crucial role in promoting equal treatment. Mainstreaming requires government and public institutions to take equality into special consideration when making decisions, and to involve affected groups actively: 'Different "equalities" are in play in different situations (there is a pluralism of equalities) and what is necessary is the ability of protected groups to be able to engage with policy-makers to help secure the adoption of the conception of equality that best suits their circumstances.'

Irish enforcement provisions

Eilis Barry, legal adviser to the Equality Authority, provided a summary of the current Irish equality enforcement regime. According to Ms Barry, the basic equality legislation and institutional supports required by the two new Directives are already in place in Ireland. Indeed, in many areas the Irish legislation goes beyond the requirements of the European Directives.

The Employment Equality Act 1998 (IE9909144F) outlaws discrimination on the nine grounds of gender, race, marital status, family status, sexual orientation, religion, disability, age, and membership of the traveller community. The Employment Equality Act established the Equality Authority, which is a public enforcement body charged with promoting equality and tackling discrimination on these nine grounds. It also established the Office of the Director of Equality Investigations whose remit is to decide claims under both the Employment Equality Act and the Equal Status Act 2000. Ms Barry believes that there is a rationale behind the integrated approach to the Employment Equality Act (one piece of legislation covering nine grounds of employment discrimination, with a single enforcement body): 'There is potential for the different grounds to reinforce each other so that advances within one ground can assist advances across the others. There is a need to avoid hierarchies of inequality where some grounds are progressed while others remain unattended.'

The Equal Status Act 2000 incorporates the same nine grounds of prohibiting discrimination as the Employment Equality Act, but the anti-discrimination prohibitions extend beyond employment discrimination into the public arena, in relation to issues such as access to education and housing and the buying of goods and services.

The Employment Equality Act and the Equal Status Act provide for the enforcement of individual rights, and also collective rights via the Equality Authority. However, Ms Barry suggested that there is a hierarchy between the Employment Equality Act and the Equal Status Act because employment discrimination claims - particularly relating to gender, which is currently at the top of the Irish employment equality hierarchy - have far more favourable enforcement remedies than the non-employment and non-gender claims. It is easier to prove discrimination in a gender-related employment case than in a non-gender non-employment case. Moreover, employment claims on the basis of gender have the option of being referred to the Circuit Court, where there is no ceiling on the compensation that may be paid. Non-gender employment-related claims, meanwhile, have a ceiling of 104 weeks' compensation. In contrast, the maximum compensation allowed under the Equal Status Act for non-employment related claims is limited to IEP 5,000.

Ms Barry's interpretation is that the Irish legislation will require a number of amendments to comply with the new Directives. Significantly, it is likely, she said, that the 104-week compensation ceiling in non-gender employment-related cases will have to be removed, as will the IEP 5,000 limit under the Equal Status Act. Crucially, the new Directives also provide important new statutory representation rights for trade unions and other non-governmental organisations (NGOs), that will have to be incorporated into Irish law. There are a number of new provisions allowing organisations such as trade unions to act in support of a complainant in procedures enforcing obligations under the Directives. Moreover, the Directives also require Member States to promote dialogue over equality issues with the social partners in terms of workplace practices, collective agreements, and so on.

Work in progress

Niall Crowley of the Equality Authority closed the conference by providing a summary of the current state of play in the area of Irish and European equality law.

We are in the midst of significant changes that demand a wide-ranging and inclusive debate about equality in Ireland, Mr Crowley emphasised. He stated that the Equality Authority would attempt to play a key role in taking up the challenges ahead and stimulating debate. Critiques of the Irish equality legislation and the EU Directives are important, he conceded, but there is much to be optimistic about because 'we are talking about a body of legislation that is very much in evolution. It is work in progress rather than finished product.'

Amendments to the Irish legislation will be required to facilitate the transposition of the Directives, he added. The Directives themselves will evolve over time and will be subject to gradual clarification, particularly as they are interpreted in the light of ECJ case law. In terms of the scope of existing Irish equality legislation, Mr Crowley emphasised that the coverage of the nine grounds of discrimination was very wide, but accepted that it could also be enlarged to encompass other grounds such as membership of a trade union, socio-economic status, and political opinion. He claimed that there is considerable potential in the transposition process for the further evolution of Irish legislation. There is an important agenda emerging, which he hoped would be realised as the Directives are transposed: 'It is an agenda that focuses on indirect discrimination, harassment, positive action, the persuasive nature of the remedies available, issues of reasonable accommodation, and issues of exemption.'

Two key elements were pinpointed as significant by Mr Crowley. One is maintaining a clear vision of equality, and what a more equal society should be about, when developing legislation. This should encompass a focus on issues such as identity, diversity, affirming the right to be different, redistribution, rights to equality alongside freedom from discrimination, and rights to political participation and access to the decision-making table. A second key element is the issue of hierarchy. There is a danger that the search for an integrated and coherent approach to equality will be problematic. There is a requirement, he stressed, to enhance the coherence of the statutory rights and remedies across the various grounds and areas covered. This should, he added, incorporate an ambition to move beyond the minimum standards established by the Directives, and use the transposition process to remove the existing hierarchies in current Irish legislation.

Commentary

Much of the equality legislation and institutional supports required to comply with the new EU Equality Directives are already in place in Ireland. Indeed, in many areas, such as the establishment of the Equality Authority, the Irish legislation goes beyond the minimum requirements of the Directives. In other areas, however, the Irish legislation will have to be amended to comply with the Directives. A significant amendment relates to the new enforcement rights in the Directives pertaining to representation by independent organisations such as trade unions. In general terms, the new Directives will provide a range of new equality rights and enforcement remedies against discrimination for various social groups in Ireland, particularly disadvantaged groups such as disabled people, who have historically resided at the bottom of the 'equality hierarchy'.

There are likely, however, to be problems in accommodating the complex and competing conceptions of equality amongst the different groups, and it will be difficult for policy-makers to reconcile these tensions and complexities when the Directives are transposed into Irish equality law. The evolution of future Irish equality legislation will be influenced by how policy-makers choose to balance these demands. There is a possibility that new 'hierarchies of equality' will materialise if competing demands are not organised in a coherent fashion. Whatever happens, the true impact of the Directives will not become clear for some time yet. (Tony Dobbins, UCD)