THE Employment Equality Bill 1996, on its face, purported to facilitate and legislate for equality, but the number of exceptions provided for in it in fact promoted unequal treatment and high lighted differences between employees, the Supreme Court was told yesterday.
The Bill was referred by the President, Mrs Robinson on April 3rd last to the Supreme Court under Article 26 of the Constitution for a decision on whether it was unconstitutional. The Supreme Court then appointed a legal team to argue against the Bill. Arguments for the constitutionality of the Bill will be made by counsel on behalf of the Attorney General.
Yesterday, at the opening of the hearing, Mr Eoin McGonigal SC, arguing against the Bill, said that they were not asking the five judge Supreme Court to advise the President that the whole Bill was unconstitutional, just certain sections of it.
He said that the general scope of the Bill, passed by the Oireachtas in March 1996, was to set out a series of provisions prohibiting discrimination on almost every conceivable ground as they concerned or affected employees.
There was no doubt that the Bill had many admirable qualities, but what was wrong was that it tried to do too much and created discriminations which were not there to begin with.
The Bill had created further in equality and new classes of discrimination and it breached constitutional rights.
Mr McGonigal said that a complete gap had been created and certain persons covered by the Anti-Discrimination Act were no longer covered. The Bill was substantially flawed.
The Bill allowed for certain exceptions to the treatment of employees. These included the grounds of religion, sexual propensity, disability, marital status and age.
The exception based on religion gave them the greatest concern. This section in the Bill proposed that a religious, educational or medical institution which was under the direction or control of a body established for religious purposes, or whose objects included the provision of services in an environment which promoted certain religious values, should not be taken to discriminate against a person where
1. it was reasonable to do so in order to maintain the religious ethos of the institution or
2. it took action which was reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.
The Bill gave far too wide a discretion to religious institutions, and that would promote significant discrimination between persons of different religions.
For instance, the right of a Protestant teacher would be undermined as he would not he employed and he would be discriminated against in favour of a Catholic teacher.
They would submit that the section was invalid having regard to the Constitution, as it provided for discrimination on the grounds of religious profession, belief or status for the purposes of protecting institutions either religious, educational or medical which had a religious ethos and whose objectives included the promotion of certain religious values.
Another exception was unlawful sexual propensity.
This section provided that an employer should not be required to recruit, retain or promote anybody on the basis of a criminal conviction of the individual or other reliable information that he or she engaged in, or had a "propensity to engage in", any form of sexual behaviour which was unlawful.
Mr McGonigal submitted that another section permitted discrimination against a person on the basis of rumour or innuendo under the guise of "reliable information".
There were numerous forms of sexual behaviour which might be unlawful. However, it had to be questionable whether an employer should be in a position to treat a person who, only on reliable information", was alleged to only have a "propensity" to engage in such sexual behaviour differently from any other employee who was not reputed to have the same "propensity".
Another section purported to prohibit discrimination on the grounds that persons were of different ages. However, it provided that a person over the age of 65 or under 18 be treated less favourably.
Another section provided an exception by way of positive discrimination in that measures should be taken to facilitate the integration into employment of persons over the age of 50. This discriminated against those under 50 for instance, a 47 year old who might have been unemployed for the same number of years.
The discrimination which was outlawed in terms of disability and which provided for the taking by employers of positive action to facilitate disabled persons placed employers under an onerous duty.
Under the marital status exception, the Act provided for adoptive leave for adopting mothers, but not for adopting fathers, except where the father was single or widowed. It also permitted a benefit to be given to male or female employees when they got married, which indirectly discriminated against homosexuals.
Another part of the Bill prohibited harassment in the workplace by reference to sexual orientation, which was defined as "heterosexual, homosexual or bisexual".
This section gave no protection, for example, to transsexual persons and was unjustifiably narrow in that it was dependent entirely on the sexual orientation of the person harassed.
The hearing resumes today and is expected to continue until the end of the week.