Equality must be at the heart of the pandemic recovery

The pandemic has highlighted and exacerbated the inequalities in Irish society. We have seen how socio-economic disadvantage has created barriers to some students’ ability to access remote schooling. There has been an alarming rise in instances of domestic, gender-based violence. Women and lone parents have been affected by the pandemic to a disproportionately negative extent, and we have seen the acute vulnerabilities of older people and people with disabilities in care settings.

Pervasive social and economic disadvantage and discrimination, including overcrowded and wholly inadequate accommodation, has rendered groups such as Travellers and Roma and people in Direct Provision more vulnerable to the pandemic.

FLAC has campaigned for equality to be at the heart of the State’s response to the pandemic, as is required by the Public Sector Human Rights and Equality Duty which came into law in 2014. This duty requires a wide range of public bodies to have regard to the need to promote equality and human rights when carrying out their functions.

It should mean that equality is mainstreamed in the heart of public policy.However, there has been little mention of this mandatory duty in the context of the pandemic recovery.

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The announcement this week by Minister Roderic O’Gorman of a comprehensive review of Ireland’s equality laws is to be welcomed as a first step to ensuring that our equality legislation is robust enough to meet the challenges we now face.

Changes to equality law in the last two decades have come about in an ad hoc fashion, and they have been accompanied by the introduction of regressive measures

Ireland has been at the forefront in terms of anti-discrimination law on a number of occasions. In the 1980s, long before the Me Too movement, the work of the Employment Equality Agency and the Labour Court led the way across Europe in terms of protection against sexual harassment at work.

The enactment of the Equal Status Act 2000 just over 20 years ago represented the fulfilment of a commitment contained in the Good Friday Agreement, and went beyond what was required at the time by EU law, with its prohibition on nine grounds of discrimination in the provision of goods and services, accommodation and in education.

Moreover, despite some positive developments, including most notably the positive equality and human rights duty, changes to equality law in the last two decades have come about in an ad hoc fashion, and they have been accompanied by the introduction of regressive measures.

District Court

For example, since 2003 a person who has been discriminated against by a licensed premises must bring a claim to the District Court rather than the more accessible Workplace Relations Commission.

While there is significant potential in the Equal Status Act, a more searching and nuanced approach to equality is now needed to ensure that the legislation reflects the discrimination that is experienced.

It is surprising, for example, that key bodies like An Garda Síochána, the prison service and immigration services may not come within the prohibition on discrimination and harassment when they are carrying out their functions. A recent High Court judgment has enlarged the exemptions in the Act that apply to the State to a worrying extent.

Ironically, in general, the Act imposes greater burdens on the private sector than on the State. There is a minimal obligation on the public and private sector service providers, educational establishments and providers of accommodations to make accommodations for people with disabilities, and these limited obligations are removed when the accommodations cost more than a”nominal” cost.

The experience of recent years has also demonstrated a renewed passion for the principles of equality and social justice

There are serious questions around whether the grounds covered in the Equal Status Acts accord with how inequality is experienced in 2021. The legislation does not explicitly allow for claims of intersectional discrimination. This is the complex cumulative way in which multiple forms of discrimination combine and overlap, especially in the experiences of individuals who belong to marginalised groups, for example, Traveller Women or LGBTQIA persons with disabilities.

It also does not prohibit discrimination based on socio-economic status even though status-based discrimination is frequently closely related to disadvantaged economic status, as illustrated by the gender pay gap.

Challenges

While society faces new challenges and inequalities, the experience of recent years has also demonstrated a renewed passion for the principles of equality and social justice.

Globally we have seen the emergence of new anti-racist and climate justice movements. Here, the results of the referendums on marriage equality and the repeal of the Eighth Amendment have illustrated radical changes in Irish society.

These changes were again illustrated in the far-reaching recommendations of the Citizens’ Assembly on gender equality. Included amongst which was a recommendation that “anti-discrimination and equality legislation should be… regularly reviewed to ensure effective monitoring, investigation, reporting and enforcement”.

In addition, the programme for government contains a commitment to examine the introduction of a “disadvantaged socio-economic status” ground to the Equal Status Acts and Employment Equality Acts.

Throughout the two decades and more of the Equal Status Acts there has never been a comprehensive review of Ireland’s equality legislation or the insertion of a full new ground. The review which has just been announced must ensure that the equality framework is robust enough to combat discrimination, redress disadvantage and promote equality in a radically different Ireland to that which existed at the turn of the millennium, and to restore Ireland’s place as a European leader in terms of equality.